THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAVE 


G' 
RESTRAINTS 


ON    THE 


ALIENATION  OF  PROPERTY 


BY 

JOHN   CHIPMAN   GRAY,  LL.D. 

ROYALL    PROFESSOR    OF    LAW    IN    Il.vKVAKD    UNIVERSITY 


SECOND    EDITION 


BOSTON 
BOSTON"    ROOK    COMPANY 

1895 


Copyright,  1885,  1895, 
5y  Johk  Chipman  Grat= 

\7 


University  Press: 
John  Wilson  and  Son,  Cambkidge,  U.S.A. 


PREFACE   TO   THE   SECOND   EDITION. 


"  In  1876  I  shared  the  surprise,  common  to  many  law- 
yers, at  the  opinion  of  the  Supreme  Court  of  the  United 
States  in  the  case  of  Nichols  v.  Eaton?  So  I  wrote  in 
the  Preface  to  the  first  edition.  Surprise  was  an  inade- 
quate word. 

The  people  of  the  United  States  have  many  virtues,  but 
all  nations  have  their  failings,  and  there  are  passages  in 
the  history  of  every  country  which  it  is  painful  for  its 
citizens  to  contemplate.  In  our  own  history,  political 
and  social,  the  pages  from  which  we  most  gladly  avert 
our  eyes  are  those  which  record  our  shortcomings  in  the 
matter  of  commercial  honesty. 

More  than  once  have  we  been  saved  from  national 
repudiation  by  the  integrity  and  courage  of  some  one 
man  ;  to  save  from  State  repudiation  the  one  righteous 
man  has  at  times  been  wanting ;  and  more  rehabilitated 
cheats  have  lived  tolerated,  if  not  honored,  in  our  cities 
than  it  is  pleasant  to  think  of. 

If  there  is  one  sentiment,  therefore,  which  it  would 
seem  to  be  the  part  of  all  in  authority,  and  particularly 
of  all  judges,  to  fortify,  it  is  the  duty  of  keeping  one's 
promises  and  paying  one's  debts. 

Nor  could  it  be  said  that  the  highest  tribunal  in  the 
country  had  been  wanting  in  this  matter.     Not  long  be- 


595749 


iv  PREFACE   TO   THE   SECOND   EDITION. 

fore,  it  had  strained  its  jurisdiction  to  the  uttermost  to 
compel  defaulting  towns  and  counties  to  pay  their  obli- 
gations: and  it  had  recently  declared  that  no  interest  in 
property  could  "be  so  fenced  about  by  inhibitions  and 
restrictions  as  to  secure  to  it  the  inconsistent  character- 
istics dl'  right  and  enjoyment  to  the  beneficiary  and 
immunity  from  his  creditors. 

When,  therefore,  the  Supreme  Court  went  out  of  its 
way  to  announce  that  it  now  repudiated  its  former  doc- 
trine, and  that  it  wished  it  to  be  known  that  property 
could  be  so  fenced  about  as  to  secure  to  it  the  charac- 
teristics of  right  and  enjoyment  to  the  beneficiary  and 
immunity  from  his  creditors,  the  words  came  to  many 
persons  with  a  shock.  Xor  was  the  shock  lessened  when 
the  Supreme  Judicial  Court  of  Massachusetts,  pushing 
the  new  doctrine  to  its  extremist  limits,  held  that  a 
man's  interest  in  trust  property  could  be  protected  from 
his  creditors  by  simply  saying  that  it  should  be. 

I  have  written  other  things,  for  one  motive  or  another. 
1ml  this  essay  wrote  itself.  While  I  was  musing,  the 
lire  burned.     Vce  milii  si  non  evangelizavero. 

If  I  had  written  with  any  expectation  of  affecting  the 
course  of  decision,  I  should  have  b  en  grievously  disap- 
pointed. State  after  State  has  given  in  its  adhesion  to 
the  new  doctrine;  the  courts  of  Maine,  Maryland,  Illi- 
nois, and  Vermont  have  adopted  it;  those  of  Delaware, 
Indiana,  and  Virginia  have  used  language  which  leaves 
little  doubt  that  they  will  adopt  it  at  the  first  opportu- 
nity; and  in  Missouri  and  Tennessee,  where  the  old  doc- 
trine had  been  expressly  declared,  it  has  now  been  thrown 
aside,  and  the  new  views  embraced.  Were  it  not  for 
an  occasional  dissenting  opinion,  especially  an  extremely 


PREFACE   TO   THE   SECOND   EDITION.  v 

able  one  of  Chief  Justice  Alvey,  late  of  the  Court  of 
Appeals  of  Maryland,  I  .should  be  vox  clamantis  in 
deserto 

And  yet  I  cannot  recant.     Doubtless  T  may  exaggerate 

the  importance  of  the  mutter;  hut,  so  far  as  it  goes,  I 
still  believe,  as  I  said  in  the  first  edition,  that  the  old 
doctrine  was  a  wholesome  one,  fit  to  produce  a  manly 
race,  based  on  sound  morality  and  wise  philosophy  ;  and 
that  the  new  doctrine  is  contrary  thereto. 

To  what  is  the  rapid  growth  of  the  new  doctrine  to  be 
referred?  It  may  be  used  to  illustrate  the  effect  of  two 
classes  of  influences  on  the  law. 

In  the  first  place,  the  influence  of  a  single  judge.  It 
is  impossible  to  read  the  later  cases  without  seeing  the 
great  power  which  the  argument  of  the  late  Mr.  Justice 
Miller,  in  the  ease  of  Nichols  v.  Eaton,  has  been  in  the 
spread  of  spendthrift  trusts.  If  Mr.  Justice  Swayne,  who 
a  few  years  before  had  given  such  a  clear  statement  of 
the  older  view,  had  written  the  opinion  in  Nichols  v. 
Kitton,  and  if  he  had  been  a  man  of  the  same  intellectual 
force  as  Judge  Miller,  we  might  have  had  a  dictum  as 
elaborate  and  as  strong  against  spendthrift  trusts  as  we 
now  have  in  their  favor,  and  the  course  of  the  law  dur- 
ing the  last  twenty  years  would,  I  am  convinced,  have 
been  very  different  from  what  it  lias  been;  without 
Judge  Miller  as  a  guide  and  example,  the  courts  would 
not  have  ventured,  as  they  have,  to  break  out  of  the 
ancient  enclosures. 

But,  on  the  other  hand,  it  is  not  to  the  influence  of 
any  one  man,  however  able,  that  the  complete  overturn 
of  the  law  can   be  attributed  :    when   such   an   abundant 


vi  PREFACE   TO   THE   SECOND  EDITION. 

crop  has  sprung  up,  the  seed  must  have  fallen  into  ground 
that  was  ready  to  receive  it;  the  spirit  of  the  time  has 
been  favorable  to  it. 

( >ne  motive  which,  at  other  times  and  in  other  coun- 
tries, has  led  to  the  establishment  of  inalienable  rights  of 
property,  has  indeed  been  absent  in  this  case.VjMie  de- 
sire, for  either  social  or  political  reasons,  to  perpetuate  a 
privileged  class  whose  power  and  wealth  should  not  be 
endangered  by  the  weakness  or  folly  of  particular  mem- 
bers, the  desire  which  led  to  the  enactment  of  the  Statute 
J),  Donis,  and  maintains  the  Familienfideieommissen  and 
Majorats  of  the  continent  of  Europe,  has  not  moved  our 
legislators  and  judges  J  One  of  the  worst  results  of  spend- 
thrift trusts,  it  is  true,  is  the  encouragement  it  gives  to 
a  plutocracy,  and  to  the  accumulation  of  a  great  fortune 
in  a  single  hand,  through  the  power  it  affords  to  rich  men 
to  assure  the  undisturbed  possession  of  wealth  to  their 
children,  however  weak  or  wicked  they  may  be.  But 
there  is  no  reason  to  believe  that  the  wish  to  produce 
such  a  state  of  things  was  present  in  the  minds  of  those 
persons  who  have  been  responsible  for  the  spread  of 
spendthrift  trusts.  It  is  simply  one  of  the  cases  where 
the  introduction  of  unsound  principles  has  worked  evil 
results,  not  only  unintended  by  those  who  introduced 
them,  but  exactly  contrary  to  their  wishes. 

Among  the  causes  which  have  produced  the  frame  of 
mind  in  which  the  doctrine  of  spendthrift  trusts  has  found 
a  congenial  home,  there  must  be  placed  the  attempts  to 
avoid  payment  of  money  borrowed  by  the  Nation,  or  by 
States  or  municipalities,  either  through  repudiation,  or 
through  technical  objections,  or  through  debasement  of 
the  coin  or  currency,  which  have  at  times  been  too  sue- 


PREFACE   TO   THE  SECOND    EDITION.  vii 

cessful,  and  which  have  exercised  bo  greai  an  influence 
on  political  parties.  Such  things  cannot  be  without  a 
weakening  of  the  moral  sense,  of  the  feeling  of  impera- 
tive duty  to  use  all  the  money  that  a  man  can  control  for 
the  payment  of  his  debts. 

It  is  worth  observing  that  the  Pennsylvania  Courts 
were  inaugurating  the  doctrine  of  spendthrift  trusts,  at 
the  time  when  the  epidemic  of  repudiation  which  Sydney 
Smith  has  immortalized  was  for  the  time  discrediting 
that  Commonwealth. 

An  effect,  and  at  the  same  time  a  cause,  of  the  state 
of  mind  which  favors  spendthrift  trusts  appears  in  the 
statutes  by  which  large  amounts  of  property  are  exempted 
from  execution.  Judge  Miller,  with  his  accustomed  acute- 
ness,  has  observed  this.  In  several  of  the  States  prop- 
erty, real  and  personal,  to  the  amount  of  thousands  of 
dollars,  is  exempt,  and  the  exemption  laws  are  gloried  in 
as  calculated  "  to  cherish  and  support  in  the  bosoms  of 
individuals  those  feelings  of  sublime  independence  which 
are  so  essential  to  the  maintenance  of  free  institutions." 
A  community  which  has  accustomed  itself  to  look  with 
complacency  on  a  man  holding  ten  or  twelve  thousand 
dollars'  worth  of  his  own  property,  and  leaving  his  debts 
unpaid,  is  not  likely  to  be  troubled  by  a  man's  having 
a  life  interest  under  a  trust  which  his  creditors  cannot 
reach. 

These  have  been  powerful  factors  in  the  introduction 
of  spendthrift  trusts,  but  they  do  not  account  for  every- 
thing. Take,  for  instance,  the  case  of  Broadway  Jim//,- 
v.  Adams,  in  Massachusetts.  The  repudiation  of  national, 
or  state,  or  personal  obligations  has  never,  since  Shay's 
rebellion,  found  favor  in   that  State,  and  the  exemption 


viii  PREFACE   TO   THE   SECOND  EDITION'. 

laws  are  moderate  and  reasonable.  Something  may  be 
set  down  to  idiosyncrasies  of  particular  judges;  more, 
to  the  example  of  Nichols  v.  Eaton;  more  still,  per- 
haps, ti>  the  ingenuity  of  counsel;  but  these  will  not 
explain   all. 

I  haw  no  doubt  that  the  speedy  acceptance  of  the 
doctrine  of  spendthrift  trusts  is  largely  due  to  the  reaction 
against  those  doctrines  of  laissez  /aire,  of  sacredness  of 
contract,  and  of  individual  liberty,  which  were  prevalent 
during  the  greater  part  of  the  century.  How  strong  that 
reaction  is,  how  great  has  been  its  effect  even  upon  those 
most  unconscious  of  it,  is  a  fact  of  which  the  civilized 
world  has  only  of  late  years  become  clearly  aware.  It 
lias  made  rapid  progress  even  since  the  time  when  the 
first  edition  of  this  book   was  published. 

The  law  and  the  social  morality  which  had  established 
itself  in*  England  and  in  the  most  civilized  parts  of  the 
United  States  during  the  earlier  part  of  the  present  cen- 
tury was  the  completion  of  that  great  change  wrought 
under  the  lead  of  English  lawyers  and  English  philoso- 
phers by  which,  in  English  speaking  countries,  mediaeval 
feudalism  had  given  way  to  the  industrial  and  commer- 
cial states  of  modern  times. 

The  foundation  of  that  system  of  law  and  morals  was 
justice,  the  idea  of  human  equality  and  of  human  liberty. 
Every  one  was  free  to  make  such  agreements  as  he  thought 
fit  with  his  fellow  creatures,  no  one  could  oblige  any  man 
to  make  any  agreement  that  ho  did  not  wish,  but  if  a 
man  made  an  agreement,  the  whole  force  of  the  State 
was  brought  to  bear  to  compel  its  performance.  It  was 
a  system  in  which  there  was  no  place  for  privileges, — 
privileges  for  rank,  or  wealth,  or   moral  weakness.     The 


PREFACE  TO  THE   SECOND   EDITION.  ix 

general  repeal  of*  usury  laws   was   the  crowning  triumph 

of  the   system. 

Now  things  are  changed.  There  is  a  strong  and  in- 
creasing leeling,  and  a  feeling  which  has  already  led  to 
many  practical  results,  that  a  main  objeet  of  law  is  not 
to  secure  liberty  of  contract,  but  to  restrain  it,  in  the 
interest,  or  supposed  interest,  of  the  weaker,  or  supposed 
weaker,  against  the  stronger,  or  supposed  stronger,  por- 
tion of  the  community.  Hence,  for  instance,  laws  enacted 
or  contemplated  for  eight  hours'  labor,  for  weekly  pay- 
ments of  wages  by  corporations,  for  "compulsory  arbi- 
tration," &c,  that  is,  laws  intended  to  take  away  from 
certain  classes  of  the  community,  for  their  supposed  good, 
their  liberty  of  action  and  their  [tower  of  contract;  in  other 
words,  attempts  to  bring  society  back  to  an  organization 
founded  on  status  and  not  upon  contract.  To  a  frame 
of  mind  and  a  state  of  public  sentiment  like  this,  spend- 
thrift trusts  are  most  congenial  If  we  are  all  to  be  eared 
for,  and  have  our  wants  supplied,  without  regard  to  our 
mental  and  moral  failings,  in  the  socialistic  Utopia,  then- 
is  little  reason  why  in  the  mean  time,  while  waiting  for 
that  day,  a  father  should  not  do  for  his  son  what  the 
State  is  then  to  do  for  us  all. 

Of  course,  it  would  be  absurd  to  say  that  the  learned 
judges  who  have  aided  in  the  introduction  of  spendthrift 
trusts  have  been  secret  socialists ;  but  it  is  none  the 
less  true,  I  believe,  that  they  have  baen  influenced,  un- 
consciously it  may  well  be,  by  those  ideas  which  the 
cxperienc  of  the  last  few  years  has  shown  to  have  been 
fermenting  in  the  minds  of  the  community  :  by  that  spirit, 
in  short,  of  paternalism,  which  is  the  fundamental  essence 
alike  of  spendthrift  trusts  and  of  socialism. 


x  PREFACE   TO   THE   SECOND  EDITION. 

Far  be  it  from  me  to  profess  to  decide  between  the 
merits  of  that  scheme  of  law  and  morals  under  which  the 
younger  years  of  those  of  us  who  have  passed  middle  life 
were  spent,  and  of  that  system  which  it  now  looks  as  if 
the  future  might  have  in  store  for  our  descendants  ;  or 
whether  the  latter  is  a  step  forward  or  backward.  On 
the  one  hand  no  humane  man  can  feel  that  the  industrial 
and  commercial  prosperity  which  flourished  under  the 
old  system  was  the  highest  ideal  for  a  community,  and  on 
the  other  hand  no  prudent  man  but  must  dread  lest  the 
amiable  altruistic  sentiment,  to-day  so  fashionable,  dash 
itself  in  pieces  against  the  inexorable  facts  of  nature,  and 
our  latter  end  be  worse  than  the  beginning.  My  mod- 
est task  has  been  to  show,  that  spendthrift  trusts  have 
no  place  in  the  system  of  the  Common  Law.  But  I  am 
no  prophet,  and  certainly  do  not  mean  to  deny  that  they 
may  be  in  entire  harmony  with  the  Social  Code  of  the 
next  century.  Dirt  is  only  matter  out  of  place ;  and 
what  is  a  blot  on  the  escutcheon  of  the  Common  Law 
may  be  a  jewel  in  the  crown  of  the  Social  Republic. 

It  may  be  said  that,  if  the  Courts  have  been  wrong  in 
tolerating  spendthrift  trusts,  a  remedy  is  to  be  found  in 
the  .legislatures.  If  the  remedy  is  like  that  applied  in 
New  York,  it  is,  if  not  worse,  more  disgusting  than  the 
disease.  One  merit  of  the  theory  of  the  Common  Law, 
whatever  may  have  been  its  shortcomings  in  practice,  was 
the  absolute  equality  before  it  of  the  rich  and  the  poor. 
How  rich  a  party  to  a  suit  might  be  (save  when  neces- 
sary to  determine  the  damages  to  the  other  party,  as  on 
a  breach  of  promise  of  marriage)  was  a  question  never 
asked  in  a  court  of  justice. 


PREFACE  TO  THE   SECOND   EDITION'.  xi 

The  Statutes  of  New  York,  as  interpreted  bj  the 
Courts,  provide  that  the  surplus  of  income  given  in  trust 
beyond  what  is  necessary  for  the  education  and  support 
of  the  beneficiary  shall  be  liable  for  his  debts.  The  ed- 
ucation  and  support  to  which  any  and  every  person  is 
entitled  at  Common  Law  is  an  education  at  the  public 
schools  and  a  support  as  a  pauper,  and  his  father's  his- 
tory and  his  own  history  are  matters  of"  no  consequence; 
but  now,  under  the  New  York  Statutes,  as  interpreted, 
all  this  is  changed.  The  Court  takes  into  account  that 
the  debtor  is  "  a  gentleman  of  high  social  standing,  whose 
associations  are  chiefly  with  men  of  leisure,  and  who  is 
connected  with  a  number  of  clubs,"  and  that  his  income 
is  not  more  than  sufficient  to  maintain  his  position  ac- 
cording to  his  education,  habits,  and  associations. 

To  say  that  whatever  money  is  given  to  a  man  cannot 
be  taken  by  his  creditors  is  bad  enough  ;  at  any  rate, 
however,  it  is  law  for  rich  and  poor  alike ;  but  to  say 
that  from  a  sum  which  creditors  can  reach  one  man,  who 
has  lived  simply  and  plainly,  can  deduct  but  a  small  sum, 
while  a  large  sum  may  be  deducted  by  another  man  be- 
cause he  is  "  of  high  social  standing,"  or  because  "  his 
associations  are  chiefly  with  men  of  leisure,"  or  because 
he  "is  connected  with  a  number  of  clubs,"  is  to  descend 
to  a  depth  of  as  shameless  snobbishness  as  any  into 
which  the  justice  of  a  country  was  ever  plunged.  A 

I  trust  that  my  strong  opinion  on  the  most  important 
question  discussed  in  this  essay  has  not  rendered  me  care- 
less in  collecting  the  authorities,  or  unfair  in  the  state- 
ment of  them.  I  have  re-examined  all  the  cases  cited 
in  the  former  edition,  and  have  searched  all  the  reports 


Xll 


PREFACE   TO   THE   SECOND  EDITION. 


published  since  its  date  in  every  jurisdiction  where  the 
doctrines  of  the  common  law  arc  or  profess  to  be  adopted. 
With  trifling  exceptions,  all  the  new  matter  lias  been 
included  in  brackets  [  ].  Such  a  practice,  though  com- 
mon when  the  work  of  one  man  is  edited  by  another, 
is  unusual  when  the  author  is  himself  the  editor.  But 
the  change  in  the  law  treated  of  in  this  little  book  (not 
merely  as  to  spendthrift  trusts,  but  as  to  many  other 
matters)  has  been  in  several  jurisdictions  during  the  last 
dozen  years  so  rapid  and  complete  as  to  form  an  inter- 
esting episode  in  legal  history,  and  in  order  to  aid  its  con- 
sideration, as  well  as  to  assist  the  practitioner  in  his 
search  for  the   later   cases,    the    device   of  brackets  has 

been   employed. 

J.   C.    G. 

July,  1895. 


PREFACE   TO   THE   FIRST   EDITION. 


How  far  the  l;i\v  will  allow  a  man  to  enjoy  rights  in 
property  which  he  cannot  transfer,  and  which  his  cred- 
itors cannot  take  for  their  debts,  is  a  question  becoming 
more  and  more  frequent  in  this  country.  In  \l\~G  I 
shared  the  surprise,  common  to  many  lawyers,  at  the 
opinion  of  the  Supreme  Court  of  the  United  States  in 
the  case  of  Nichols  v.  Eaton,  91  U.  S.  716,  containing, 
as  it  did,  much  that  was  contrary  to  what,  both  in 
teaching  and  practice,  I  had  hitherto  supposed  to  be 
settled  law.  Upon  investigation,  I  became  convinced 
that  the  questions  raised  by  that  opinion  could  be  sat- 
isfactorily solved  only  by  studying  as  a  whole  the 
history  and  present  condition  of  the  law  governing  re- 
straints on  the  transfer  of  property,  both  voluntary  and 
involuntary;  and  I  determined  that  I  would  at  some 
time  collect  the  authorities  for  that  purpose.  The  pres- 
ent essay  is  the  result  of  this  determination,  the  carry- 
ing out  of  which  has  been  delayed  by  other  engagements 
until  now.  Begun  for  my  own  enlightenment,  I  publish 
it  as  the  first  attempt,  so  far  as  1  know,  to  deal  sys- 
tematically with  the  whole  of  a  legal  doctrine,  whose 
development  is.  I  venture  to  think,  in  danger  of  being 
marred  by  too  exclusive  an  attention  to  particular  asp  cts. 


xiv  PREFACE   TO   THE   FIRST   EDITION. 

I  should  add,  that  the  book  was  .substantially  written 
before  the  publication  of  the  decision  of  the  (Supreme 
Judicial  Court  of"  Massachusetts  in  Broadway  Haul:  v. 
Adams,  133  Mass.   170. 

J.   C.    G. 

July,  1883. 


CONTENTS. 


SECTIONS 

INTRODUCTION l-l(J 

I.  FORFEITURE   FOR   ALIENATION. 

A.  Estates  in  Fee  Simple 11-74  g 

B.  Estates  in  Fee  Tail 75-7  7 

C.  Estates  for  Life 78-100 

D.  Estates  for  Years 101-103 

II.  RESTRAINTS  ON   ALIENATION. 

A.  Estates  in  Fee  Simple 105-131  k 

B.  Estates  in  Fee  Tail 132,  133 

C.  Estates  for  Life 134-277  a 

D.  Estates  for  Years 278,278  a 

SUMMARY 279 


APPENDIX  I. —Decisions  under  Statutes. 

A.  New  York 280-295 

B.  Other  States  

APPENDIX   II. —  Cases    decided   too    late    for 

Insertion  in  the  Text 296a-296c 


TABLE   OF   CASES. 


THE   REFEREN<  ES   ABE   TO  TllE   SECTIONS. 


Ailesbury  ».  Iveagh 

.    .    ,271a 

Alik-n  c.  Johnson      .    • 

.     .     .    56  a 

Alford,  Re 

.    .     .    112 

Allen  v.  Craft  .     .     •     . 

...      23 

v.  White  .     .     .     . 

.     .     .       65 

Ames  v.  Clarke    .     .     . 

.    124/,  239 

Amherst's  Trusts,  Re    . 

.     .    .      78 

Anderson  v.  Briscoe  . 

.    171,  190  c 

v.  Can*    .    •    • 

.    40,  43,  54 

Andress  v.  Lewis  .     . 

.   226,  268  a 

Andrews,  Re    .     .     . 

.     .     .  273  c 

p.  Rove    .     .     . 

.     .     73,  74 

v.  Spurlin      .     . 

.     .     .     23,  52 

Annin  v.  Vandoren  . 

56  «,  56  e,  65 

Anon.  (1  Brownl.  45) 

.     .       75 

(Dal.  58) .     .     . 

...      32 

(Dyer,  45  a.)     . 

...       44 

(Over,  6,  45,  66,  7 

},  152)    .     101 

(8  Hen.  VII.,  10) 

...      25 

(Jenk.  243)  .     . 

.     .     .       75 

Apple  V.  Allen       .      . 

.     .     .     275 

A r mi t age  v.  Coates  . 

.     129,2726 

Armstrong's  F.state  . 

.     .     .     216 

Armstrong  r.  Kent  . 

56  e,  65,  74  a 

i>.  M' Alpine 

..     .      53,  54 

v.  Pitts     .     .     . 

170,248 

Arnold  v.  Gilbert 

.     286 

v.  Woodhams 

.    271.  277" 

Arnsby  v.  Woodward 

.     .     .     Kil 

Arton  v.  Hare      .     . 

75 

Arzbacber  v.  Mayer . 

.     .     .     .     296 

Asche  v  Asche     .     . 

.     .     .     .      116 

Ash  v.  Bowen  .     .     . 

.     .     .     .     271! 

Ashburnham'a  Trust.  1 

le   .     .165,  176 

Asbhurst's  Appeal    . 

.     ...    276 

Estate      .     .     . 

.     .     .     .  235 b 

Ashhurst  v.  Given    . 

223,  226,  265  a 

Atkins,  Taylor  d.,  v 


Attorney-General  v 

v.  Webster  . 
Attorney-General  o 

Ettershank  .  . 
Attwater  V.  Attwater 
Aubert's  Appeal  . 
Auwerter  v.  Mathiot 
Avery  v.  Payne  . 
Axford  r.  \lv\d  . 
Aylwin's  Trusts,  Re 


Horde  .  .  77 
Hall  .  68-70,  74/ 
.  .  .  .  112 b 
Victoria  V. 
....  101 
.  36,  37,  43,  105 
.  .  .  .1246 
.  .  .  .216  a 
....  30 
.     .     .     .  274  n 


B. 

Babcock  v.  Wyman 267  6 

Bachman  v.  Wolbert    ....    233 

Bacon's  Appeal  .  .  .  215,  216,  218 
Baggett  v.  Meux .  .  .  125,  126,  27U 
Bailie  i».  McWhorter     ....     184 

Baker  v.  Brown 240./ 

Baker  v.  Newton 47 

Ball  v.  Hancock 74« 

Ballance  v.  Rankin 135 

Banfield  r.  Wiggin  .  56«f,  114  ».  17:: 
Rank  of  Commerce  v.  Chambers  240.-', 
268  c 
Bulk  of  the  State  v.  Forney  40.  182 
Barker's  Estate  .  124  h,  124  k,  235  h 
Barker  p.Davis 27,  47 


Barnard  r.  Bailey 
Barnes  v.  Dow 

v.  Rowley  . 
Barnett's  Appeal  • 
Barnett  o.  Blake  . 
Baiter,  Ex  parte  . 
Barton  v.  Barton  . 

V.  Briscoe 
Bassett  v.  Budlong 


40 

240.- 

83 

,218,  226 

46,  78,  124/ 
.  .  .  "■"• 
62.  63 
.  140.  167/ 
.     .     .       23 


XVU1 


TABLE   OF   CASKS. 


Bateman  v.  Allen 75 

Battle  v.  Petway 116,  174 

Baumgras  o.  Baumgras  .  .  .  56  # 
Bayley  v.  Bishop  ...  84,  86.  87 
Beachcrofl  v.  Broome    .     .     .     (it),  70 

Bean  v.  Myers 56a,  65 

Beauforf  v.  ("oilier 275 

Becketl  v.  Tasker  .  .  274a,  277" 
Beck's  Estate  .  .  124e-a,  124i.239 
Bell  v.  Watkins        .     .     .    176,  188  a 

Bellows,  In  re 254 

Belmont  v.  O'Brien 282 

Bennet,  Ex  parte 91 

Bennett  v.  Chapin 54 

v.  Rosenthal 28t> 

Benton,  Re 131  b 

Bergin  r.  Sisters  of  St.  Joseph   .       40 

Best  v.  Conn 190  A; 

Bevan's  Trusts,  lie 112a 

Biddle's  Appeal 112c 

Estate 276 

Billing  ».  Welch.     .     .     .    25.  37,  43 

Billings  r.  .Marsh 240  e 

Bills  v.  Hills 56a,  65 

Billson  v.  Crofts 78 

Black  v.  Tyler 30 

Blackstone  Bank  v.  Davis  52, 113.  181 
Blackwell,  Den  d.,  v.  Blackwell .  40 
Blanchard  v.  Taylor  .  .  .  .190  c 
Bland  v.  Bland     .     .    .     .  82",  190j 

Blanshard,  He 95 

Board  of  Charities  ».  Kennedy  .  235  a 

v.  Moore 235  a 

Boddam,  Ex  parte '.'1 

Bogart  '•.  Payne 174 

Holies  v.  State  Trust  Co.  .  .172,  192 
Bonrke's  Trusts,  Re       ...  105,  134 

Bowen  v.  Bowen 56  a,  65 

Bowes  '•.  Goslett  ....  56,  58,  62 
Bown,  Ho    127.  131  6,  131  c,  131./'.  131  i 

Bowser  v.  Colby 101 

Boyd's  Appeal 226 

Bradley  r.  Peixoto  .  .  .  27.  47.  82 
Braggfl.  Taund  ....  19,  25.  :;i 
r.  Sfanner  ....  25,  31 
Braman  p.  Stilrs  .  .  122.  236,  240  6 
Bramhal!  r.  Ferris  .  ,  78,181,201 
Branch  Bank  r.  Wilkins  .  .  .  171 
Brandon  v.    i.ston 78 

v.  Rohinson  79,  SO.  134.  146,140, 

It;:/,  170.  181.  185,  104.  238, 

240  6,  240/).  252.  254 

Braunstein  v.  Lewis 274  a 


Bressler  v.  Kent  .     .     .      275//,  275  e 

Brettle,  He 273 

Bridge  v.  Ward    .      24,  49,  134,  L94a 

Bridges  v.  Wilkins 275 

Brigden  v.  Gill 173.  241) 

Brine  v.  Ins.  Co 267  h 

Bristor  v.  Tasker 276 

Bristow  v.  McCall 174 

Broad  v  Jollyfe 19 

Broadway  Hank  r.  Adams     124/,  239, 
240  b,  240  '/,  240  y,  240  b,  256- 


258,  265,  267 
Brooke  v.  Pearson 
Brooks's  Estate    . 
Brooks  v.  Raynolds 
Brothers  v.  Met  unlv 
Brown  v.  (iibbs    . 

V.  Graves 

r.  Harris  .     . 

v.  Pocoek 

V.  Williamson 
Browne's  Will,  He 
Brubaker  v.  Huber 
Bryan,  Doe  d.,  )-.  Bancks 
Br  van  v.  Knickerbaeker  , 


268  a,  277  a 

.      97,  98 

.     .  235  b 

176,  267  d 

.     .       40 

.     .      58 

.     .     174 

181,  286 

149,  167/.  104 

226,  265  -( 

.     .       85 

.     .  235  k 

.      .      101 

180,  268  «, 

290 

Buckman  v.  Wolbert    ....    233 

Buckton  v.  Hay  ...     272  </,  272  e 

Buford  r.  Guthrie 124  q 

Bull  r.  Kentucky  Bank      .      78,  \W  / 

r.  Kingston *.      58 

Bullock,  Be  78,  167/,  167  >',  167^,176 
Burbank  v.  Whitney  ....  64 
Burhank,  Will  of.  Re    .     .     .  56  «.  65 

Burleigh  v.  Clough 74  e 

Butler  v.  Butler 124  c 

v.  Cumpston 273  c 

v   McCann 241  <t 

Butterfield  v.  Reed 134 


C.'s  Settlement.  Re 
Cager,  Matter  of  . 
Cahill  v.  Cahill  . 
?-.  Martin  .  . 
Caillaud  o.  Estwick 
Callan's  Estate,  Re 
( lameron,  Re  .  • 
Camp  v.  Cleary   12,  22 

Campbell  ?•.  Beaumont 
t'.  Brannin      .     . 


29 


.       271a 

.     .       70 

.       272  6 

.       272  h 

.     .     174 

.     92,  99 

.     .     112 

a,  20  6.  40, 

52.  78.  249  a 

56  a,  65.  70 

.     .       190  k 


•I  A.BLE  OF   CASES. 


XIX 


Campbell  v.  Fields    .     .     .     .      275  c 
v.  Foster    265  a,  286, 289,  293,  294 

v.  [ngersoll 276 

.    285 

294  </ 

216a 

.      171 

56  a,  65 

.    113 

114-/ 
.  276 
.  78 
.  H2o 
.  275  b 

272  a 
.  170 
.  56  a 
91,  99 


111 


.  1»I7  i 

.  273  c 

.     240 

172,  173 

.    74  e 


v.  Low 
Card  i'.  Meincke 
Carkhufi  v.  Anderson 
( !arleton  v.  Banks 
Can-  r.  Effinger    . 

<  iarradine  v.  <  larradi 
Carson  v.  < larson  . 

v.  Fuhs 
Cartel-  v.  Carter 

r.  Cropley 

v.  Eveleigh 
Carver  v.  Bowles 

c.  Peck 

<  !ase  o.  Dwire  .    . 
( lasey's  Trusts 
Caulfield  v.  Maguire 
Chambers  u.  Smith 
Chapman  v.  Iiriggs 
Chase  v.  Chase     . 

v.  Currier       56 

r.  I. add      .     . 
Chomley  a.  Humble 
Christy,  Ex  parte 

v.  Brien    .    . 

p.  ( Igle     .    . 

v.  Pulliam 
Churchill  v.  .Marks 
Claflin  o.  Claflin 
Clamorgan  v.  Lane 
Clark  v.  Hard  nick  Seni 
Clarke's  Trusts,  Re 
Clarke  o.  (  handlers 

V.  Windham 
Claydon  v.  Finch 
Clement's  Appeal 
('live  o.  Carew 
Clute  v.  Bool  281,  285,  280,  290,  291, 
294,  295 
Cochran  v.  Paris  .... 
Cochrane  o.  Schell 
Cocker  a.  Quayle 

Codrington  v.  Foley 146 

Coe's  Trust.  Re 106,  165 

Cole  o.  Cole 56  fit.  65 

Coleman.  Re    150,  154,  158,  160.  167*. 
167  e,  167/.  17n,  261  a 

v.  Coleman 30 

Colgan,  Re .112 

Collier  v.  Blake    ......    296 

Collins,  Re 112 


.    254 
.216  a 

137,  138 

.     135 

46,  49,  50,  51  a 

120,124/,  124  w 

...       53 

inarv    56  a,  65 

131/,  131  h 

.     .     91, 99 

...     171 

.     .     .  273  c 

.     .     .  199  a 

.     .     .277  a 


...  249 
284-286,  295 
...     271 


Collins  v.  <  llamorgan     ....      53 

v.  Foley 54 

v.  Plummer 77 

Colliton  and  Landergan,  Re  .  77,  132 
( ' us  v.  ( lombs  ....    56  e,  74  a 

<  lommonwealth  v.  Duffield     .     .    219 

Conger  v.  Lowe 78 

« lonkling  o.  Doul 275  -/ 

<  lonrow's  Appeal 113 

Cook,  In  re 254 

v.  Kennerly  ...         .     .     171 

•  looke,  Ex  parte '.'2 

v.  Husbands .     .     .      2756,275  c 

Cookson  v.  Toole 275  , 

Coombes,  Re  ...  .  \-',l  </ -  1-tt  / 
Cooper's  Estate    .    .  113,  124a,  1244 

Cooper  v.  Cooper 118 

v.  Laroche 272  / 

v.  Macdonald     .     .     49,  126,  133 

v.  Wyatt 78,  78  a 

Copeland  /-.  Barron 74  e 

<  lorbet's  Case 77 

Corbett  v.  Corbett    19,  22,  27,  29  a,  47 
Corr  v.  Corr     ....  .     .       92 

Cosby  v.  Ferguson  .  176,  190'/,  190  i 
Coster  v.  Lorillard  .  .  .  284,285 
( lounden  v.  Clerke 59 

.     249 

111  a 

40,  52 

3  e,  274  a 

65  a 


Coutts  v.  Walker  .... 
Coventry  v.  Coventry  .  . 
Cowell  v.  Springs  Co.  .  . 
Cox  v.  Bennett     .    273  c,  27 

v.  Wills 

Craig  v.  Hone 

Craven  v.  Brady  .... 
Crawford  u  Lundy  .  .  . 
Creighton  v.  ( llifford  .  . 
Cridland's  Estate  .  .  . 
Crocker  o.  Trevithin  .  . 
( Iromie  v.  Bull  ... 
Crompton  v.  Anthony  .  . 
Croughton's  Trusts,  Re 
Crozier  o.  Bray  .  .  . 
Cruger  v.  Coleman 171 

r.  ( !ruger 286 

u.Jones 282,291 

Cummings  t». Corey  .  .  .172,296 
Cunynghame's  Settlement.  Re  272  <■, 
272./ 
Curran's  Appeal  .  .  .  .  .112c 
Currey,  Re  ...  125,  131  ft,  271  a 
Curtis  v.  Lukin  ....  108,  124 
Cuthbert,  &c 112 

r   Purrier 58 


.     291 

.       78 
.      23 
.     172 
231  a 
75 
.     176 
.     170 
131,131  c 
64,  70,  74  , 


XX 


TABLE   OF   CASES. 


1). 

Daniel  v.  Ublev 33 

r.  Uply  '.  .  .  .  .  33,  35,  43 
Daniels  p.  Eldredge  .    .    .     116 

Davenport  p.  Lacon  .     .     .     .     •     171 

p.  rhe  Queen 101 

Davidson  v.  Chalmers  .     .     .       167  a 

,-.  Fnlev 14.-,.  147 

p.  Kemper  ....  118,  L90A 
Davis  r.  Richardson  .  .  •  56  a,  •  ;■"> 
Dawkins  r.  Penrhyn    .     •     •     .    *77 

DuWSOll   P.   I  Irani 

1  (ay  p.  1  toy     .     . 
De  <  lamp  p.  Dempsey  .     •     • 
Di  cker  b   Directors  of  the  Poor 
Deering  p.  Tucker    .... 


...       83 

85,  80,  87,  89 

.     .     .     293 

235  a 

23 


Dumpor's  Case  .  . 
Dunn's  Appeal  .  . 
Dunn  p.  Dunn  .  . 
p.  Flood  .  .  . 
Dunnill'8  Trusts,  Re 
Durant    v.   .Mass.  Hospital 


101 
276 

2756 
42 

125  u 


ife 


Ins.  Co 172,  176,  266 


Degraw  p.  Clason      181,286,291,  295 

Dehorty  y.  Jones 23 

Delberi's  Appeal 270 

Den  d.  Blackwell  e.  Blackwell  .      40 

(1.  Trumbull  b.  Gibbons      .      40 

De  Peyster  v.  Cleudining  .     .     .    280 

b.  Michael    ....    20,  2:..  26 

Derbishire  i».  Home      ....    271 

Derbyshire's  Estate 112  c 

Detmold,  Re 95,  98 

Devitt  p.  Faiissett     ....      131  k 

Dick  b.  Pitchford 182 

Dickinson  v.  Mort    ....      272  a 

Dixon,  Re 273  d 

Dodson  b.  Ball     ....      218,  270 

Doe  d.  Brvan  b.  Bancks    .     .     .     101 

d.  Gill  v.  Pearson     35,  30,41,  43 

p.  Hawke 27,  28 

d.  Hull  r  Greenhill  .  .  174 
d.  Mclntyre  p.  Mclntyre  .  23 
d.  Mitchinson  p.  Carter  101 

d.  Nash  v  Birch  ....  101 
d.  Stevenson  v.  Glover  56  '', 

50  d,  00,  G2.  03,  74 
Dommetl  p.  Bedford     .     78,  78  a,  80 

Donalds  P.  1*1  nui 1 195 

Dorland  b.  Dorland 113 

Dorsett  p.  Dorsett  ....      78 

Doswell  p.  Anderson  .     .    °    243 

I  tougal  p.  Fryer 53 

Downing  p.  Marshall    ....     284 

Drake  b.  Brown 210  a 

Drapjer,  Re ....  <  .  .  87 
Draycoll  <•.  Harrison  .  .  .  27^;  c 
Dred  Scotl  Case,  The  ....  254 
Dugdale,  Re       19,22,  27,  29  a,  39.  17 


Earls  v.  M'Alpine 
Earp's  Appeal 
Easterly  p.  Keney 
Eastland  v.  Jordan 
Eastwick's  Estate 
Eaton  p.  Straw  .  . 
Eberly's  Appeal  .  . 
Edgington's  Trusts,  lie 


...  53 
...  218 
.  .177,  198 
190  5,  190/ 
.  .  .  270 
56  e,  04,  74/ 
.  .  .  235  6 
...       78 


Ehrisman  v.  Sener 134 

Elcan  p.  Lancasterian  School    56  a,  65 

Ellis's  Trusts,  Re      .     127,  130,  131  e. 

131  k 

Emerson  v.  Marks 138 

Emery  p.  Van  Syckel  ....  78 
Ennor  p.  Hudson  ....  275  a' 
Ernst  b   Shinkle  .....      290  a 

Errington,  Re 272  d 

Evans  b.  Wall 240  q 

Everett  b.  Paxton     ....      2736 

v.  Stone 254 

Everitt  p.  Everitt       ....  280 

Ewing  p.  Smith 275  6 

Eyrick  p.  Hetrick  ....  228 
Eyston,  Ex  parte      .    .    .     .     78,  80 

F. 

Farmers'  Savings  Bank  v.  Brewer  197 
Fears  v.  Brooks 275 


Fellows  v.  Heermans     .     . 

v   Tann 

First  Univ.  Soc.  v.  Boland 
Fisher  p.  Dewerson  .     .     . 

p.  Gaffney    .... 

v.  Taylor      .... 

p.  Wi'ster  •  40,  56  d, 
Fitzgerald's  Settlement,  Re 
Fitzgibbon  v.  Blake  .  . 
Flanders  B.  Clark  .  .  . 
Fleming  p.  Armstrong  .  . 
Fletcher  v.  Green  .  .  . 
Flinn  p.  Davis  .  .  .  56  a 
Flood's  Trusts,  Re    .     .     . 


.     282 

.     172 

22,  42 

.       30 

.       21 

20,  205  a 

71  a,  74./ 

112 

273  6 

08 

273  a 

271 

56  i ,  65 

271a 


TABLE  OF  CASKS. 


xxi 


Flournoy  >'■  Johnson 

118 

170,  190  e, 

190  i 

Fogarty  p.  Stack 50  d 

.  140,  23S 

.     .     L91 

Ford  r.  Bat  ley 

.     .      83 

Forney's  Estate    . 

.     .    270 

Forth  v.  Norfolk  . 

.     .     174 

Fosdick  p.  Fosdick 

.     .114  a 

Foster,  Ex  parte  . 

.     .    254 

v.  Foster  .     . 

170,  240  c 

Fowler  p.  Fowler 

.   21,  134 

Foy  ''.  H  voile  .     . 

.     75,  70 

Franklin  p.  Coffee 

.     .    263 

Frazier  v.  Barnum 

.    .    191 

Freeman  v.  Bowen 

.    .      78 

French  v.  Old  South  So 

a. . 

.     29,  42 

Freyvogle  p.  Hughes    , 

.     .    276 

Friedman  p.  Steiner 

.     .   56  </ 

.     .      272  b 

G. 


Gallinger  v.  Farlinger  ...     40,  43 

Garland  ».  Garland 249  6 

Gamble  «.  Dahney 171 

Gaskell's  Trusts,  Re  .  .  129,131c 
Genet  v  Beekman     .      199  6,291,294 

p.Foster 291,293 

Gerard  o.  Buckley  ....  114  a 
Ghormley  v.  Smith  226,  208 a,  277  a 
Gifford  v.  Choate 72 

v.  Rising 295 

Gill,  Doe  d.  v.  Pearson    35,  30,  41,  43 

v.  Morgan 99 

Gillmer  p.  Dais 71  'f 

Oilman  p.  McArdle 280 

Girard  Ins.  Co.  ».  Chambers    173,  227 

Glanvill,  Re 273  c 

Gleason  v.  Fayerweather  .  .  .  113 
Godden  v.  Crowhurst     157,  100,  167;*, 

176 

Godfrey,  Re 2714 

Goe's  Estate  .  124/,  124  g,  121  i,  239 
Good  v.  Fichthorn    .     .     .    56/,  71  a 

Gosling  v.  Gosling Ill 

Gott  p.  Cook    ....    284-280,  295 

p.  Nairne      ....    112,  1126 


Graff  p.  Bonnett       181,  284,  286,  288, 
290,  291,  293 

Graham  v.  I.ee 40 

Granl  p.  <  Jarpenter 23 

(, raves  p.  Dolphin   134,  149,  107/,  L81 
Gray  p.  Blanchard   .     .    .    23,  40,  52 

v.  ('orbit 240 y 

V.  Obear 115 

Greated  p.  Created 04 

Green  v.  Creighton  ....       267  b 

r.  Harvey 58 

f.  Spicer      150,  167  c,  167 j,  180, 
181 

Greene  v.  Greene 30 

.  . 131 b 
.  50 j,  70 
.  .  295 
.  50  0,  65 
.     .    286 


Grey's  Settlements,  Re 
Greyston  v.  Clark  .  . 
Griffen  v.  Ford  .  .  , 
Griswold  P.  Warner 
Grout  v.  Van  Schoonhoven 
Guardians  of  the  l'oor  p.  Mintzer  235  a 
Gulliver  p.  Vaux  .  59,  60,  61,  63,  72 
Gunn  v.  Brown 125 


II. 


Hagerty  v.  Hagerty 

.    .     .     286 

Hahn  r.  Hutchinson  124 

&134,  235  g 

Hale  v.  Marsh      .     .     . 

...      72 

...      99 

v.  Robinson  .     .     . 

.     .  56  d,  65 

p.  Williams        .     . 

.    240,  240  b 

Hallett  v.  Thompson     . 

181,  280,  291 

Halliday  v.  Stickler 

.     .     .  50  a 

Ilalstead  v.  Westervelt 

.    .      192  a 

Hamerslev  v.  Smith 

222.  276 

Hamilton  p    Hamilton 

.     .       272  A 

Ilann  v.  Van  Voorhis    . 

.     .     .     289 

Harbin  ».  Masterman    . 

112  c,  296  c 

Hardenburgh  v.  Blair   . 

.      191,  192 

Ilanlv  p.  Galloway  •     . 

...      26 

llarkinson  v.  Bacon       . 

Harris  r.  Booker       .     • 

.     o     .     174 

...    174 

Harrison  v.  Harrison 

.    .      274a 

227 

Hartley's  Estate  .     .     • 

.       218,  270 

Hartman  p.  Herbine 

.     .     .       40 

I  las  well  ('.  11  as  well   .      . 

...       78 

XX 11 


TABLE   OF   CASES. 


Hauer  v.  Sheetz 54 

Havelock  v.  Havelock  ....    112 

v.  Healy  .    .    .110,  181,280 

Hawley  v.  James       282,  284,  285,  295 

r.  Northampton     .     .         .23 

Heath  v.  Bishop 183 

v.  Wickham      .   126  a,  271,  273  a 
Heddlestone  v.  Heddlebtone  .     53,54 

Hedgely,  Re 274  a 

Heermans  v.  Robertson  .  .  .  282 
Helmer  a.  Shoemaker  ....  56a 
Hemingway  ».  Braithwaite  .  .  277  a 
Henderson's  Estate  ....  124  a 
Henderson  v.  Cross  ....      56,  58 

v.  Hays 216  a 

v.  Hill 171 

Hendrick  v.  Robinson  ....  174 
Henning  v.  Harrison  ....  23 
Henson  v.  Wright  ....  240  a- 
Herbert  v.  Webster  .     .     272  e,  272/ 

Hetrick  v.  Addams 270 

Hexter  v.  Clifford 290 

Hibbs's  Estate 235  6 

Higginbotham,  Re 112 

v.  Barrett 112 

Higginson  v.  Kelly 92 

Higinbotham  v.  Holme      ...       91 

Hildeburn's  Estate 276 

Hill,  Ex  parte 91 

v.  Hill 54 

v.  Jones 30 

v.  McRae      .    .    .   176,  186,  188 

Hilton  v.  Hilton 112 

Hinckley  *.  Williams    .     .   114  a,  173 

Hinkle's  Appeal 124  d 

Hinton,  Ex  parte 92 

Hobbs  v.  Smith  .  .  .  172,  190,  278 
Hodgdon  v.  Clark  .  .  .  25  a,  113 
Hodges  v.  Hodges    ....      271a 

Hodgson,  Ex  parte 92 

v.  Hal  ford 272  d 

Hohman,  Matter  of  .     .    .  40,  56/,  65 

Holdship  v.  Patterson   .  219,  221,  226, 

265  a 

Holingshed  v.  Alston    ....      54 

Holmes,  Re 131  c 

i'.  Godson     .     56  c,  61.62,  63,  72 
v.  Penney      163,  107./,  170,  268  6 

Homer  v.  Shelton 72 

Hone  r.  Van  Schaick     ....     286 

Hooberry  v.  Harding    .     240t>,  240io 

Hood  Hairs  v.  <  'athcart     273  c,  273  e, 

274  a 


Hood  v.  Oglander     . 

19,  55,  105 

Horwitz  v.  Norris 

.     .     232 

House  v.  Spear     115,  124  < 

,  124//,  276 

1  toward  v.  <  larusi 

.     .     .74-/ 

Hovt's  Estate    .    .    . 

281 

,  292,  294  c 

240  n 

.  74  a 

Hoxsev  y.  Hoxsey  . 

.  Gl 

Hubbard  v.  Rawson 

.      72.74 

Iluber's  Appeal   .     . 

218,  232 

Hughes  v.  Ellis    .    . 

04 

101 

270 

Hull,  Doe  d.  v.  Greenh 

11 

. 

174 

Hunt-Foulston  v.  Eurbi 

. 

89 

30 

Hunterdon  Freeholders 

v. 

Henry  192  a 

.     .     78, 80 

Hutchings,  Re      .    . 

.   125,  131c 

Hutchins  v.  Hevwood 

.    .     .     171 

Hutchison's  Appeal  . 

.     .       124  6 

Hyde  v.  Hyde  .    .    . 

.     .      273  e 

265  6 

Ide  v.  Ide    .    .    .    .      67-69,  72,  74/ 

Ioor  v.  Hodges 171 

Ireland  v.  Ireland 181 

Ives  v.  Harris  ....      275  6,  275  c 


Jackson,  Ex  parte    . 

v. 

v. 

Bull       .     56  e 

69, 

70,  72,  74  a 

V. 

.     .       70 

■v. 

Groat  .     .     . 

.     .       81 

V. 

Hobhouse 

141,269 

V. 

Majoribanks 

.     .     107 

V. 

Robins      .     . 

70,72,  74  a 

V. 

Scbutz     .    . 

.  25,  20,  40,  52 

V. 

.     .      81 

V 

VonZedlitz  240  c, 

208  a,  277  a 

Jacob's 

.      1116 

James 

v.  (lard       .     . 

.     .     23,  40 

r. 

Mavrant  .     . 

.       275  6 

v. 

.     .     101 

Jamison  v.  Craven    . 

.  40,  74  a 

Jaques 

v.   Methodist 

Epi 

scopal 

TABLE  OF   CASES. 


XX1U 


Jarboe  v.  Hey      .     • 
Jar\  is  o.  Babcock 
Jasper  o.  Maxw  ell    • 
Jauretcfae  ».  Proctor 


ink 


Jar,   Ex  parti' 

r.  Robinson  . 
.lie  v.  Audley  . 
Jennings  !'.  <  lolemai 
Jermine  v.  Arscot 
Jervis  v.  Bruton  . 
Joel  y.  Mills  .  . 
Johnson  o.  <  !onn.  I' 

r.  Hurley 

o.  \\ 1  ni if 

V.  Zane  .  . 
Johnston  r.  Harvy 
Jollands  v.  Burdetl 
Jones's  Appeal 

Will,  Re  .  . 
Jones  c.  Bacon 

r.  I  larter  .    . 

v.  Fort     .    . 

v.  Jones  .     . 

v.  Langhorne 

v.  Reese  .     . 

v.  Salter  .     . 
Jordan,  In  re 
Joslin  '•.  Rhoades 
Josselyn  v.  Josselyn 
Jourolmon  v.  Massengill 


K. 


240  q,  240  ! 

.     .     .     285 

.     .     .     113 

3,  40,  52,  118, 

L24i,  124  k 

.      95 

274  a 


.       272  f 

.     .     171 

.     .       75 

.     .      77 

.     .      80 

.     .     171 

240  t 

.     .     191 

.     .    246 

.      268  a 

.     .    273 

.      275  b 

.    27,  47 

56  a,  65 

.     .     101 

.     .     172 

.  56  a,  65 

.       190  c 

170,  188 

149,  167  j 

.      271a 

56  a,  65,  72  a 

107,  124,  153 

.     .      240  w 


Kahanaiki  v.  Khala  Sugar  Co.  .       23 

Kane  v.  Gott 286 

Karker's  Appeal 56  d,  71 

Kay  o.  Scales 215,  218 

Keane,  Re 274  a 

■  Kearslev  v.  Woodcock         49,  50,  159, 

167.;',  176 

Kelley  V.  Meins   .     .      56  a,  56  e,  72  a 

Kemmisv.  Kemmis       .     ...     112 


Kempton  V.  Hallowell 
Kennedy  r.  Fury 

v.  Nunan  .  . 
Kent  v.  Armstron 

v.  Curtis  .     . 

v.  Morrison  . 
Kepple's  Appeal  . 
Kevser's  Appeal 

1M« 


170,  176, 184 

216  a 

.     171 

.    74  e 

.     171) 

.    74  e 

54,  113 

115,  124  a,  124  e- 

124  i,  230,  257 


Keyser  v.  Mitchell 232 

Kialliu.uk  r.  Kiallmark       .     .      48,   '■<'> 

Kilroy  v.  W 1 2946 

King's  Estate  .  .  .  219,  225  a,  235  e 
King  v.  Burchell  ....  25,  ~~ 
Kinney  o.  Hemphill  ....  227 
Kirby  o.  Lake  Shore  Railroad      207  6 

Kirk  v.  Murphy 274  a 

Kittredge  v.  Emerson   ....    254 

O.  Warren 254 

Kneflerv.  Slireve  .  .  .  190/,  1901 
Knight  v.  Browne  ....  98,  100 
Kuhn  v.  Newman  .  .  215,218,276 
Kuntzleman's  Estate     .    .    235  a1,  276 


Lackland  v.  Smith    .     .      240/),  268  a 

Lamb  v.  Wragg 171 

Lamberton  i>.  Pereles    .     .   194  a,  296 
Lamoureux  v.  Van  Rensselaer       291, 

292 
Lam  pert  v.  Haydel 
Lancaster  v.  Dolan 
Landon's  Trusts,  Re 
Lane  v.  Lane   .     . 
Lang  v.  Ropke 
Langdon  r.  Ingram 
Large's  Case    .     . 
Lario  v.  Walker    . 
Latham  v.  Latham 
Lazarus  v.  Lazarus 
Leavitt  v.  Beirne    1 
Lee  r.  Knos      .     . 
Leeming  v.  Sherratt 
Leggett  v.  Firth    . 

p.  Perkins 
Leigh  v.  Harrison 
Lent  v.  Howard  . 
Le  Roy  v.  Dunkerly 
Lester  v.  Garland 
Levy's  Estate  .  . 
Trusts,  lie 
Lewes  v.  Lewes  . 
Lewis  0.  Henry 

V.  Miller    .     . 
Lightbourne  v  Gill 
Lightner's  Appeal 


L96 


.     .     .  240  q 

219,275  6,  276 

106,  167.;,  176 

54,  113 

.    295 

.       53 

46,  52,  124  i 

.    23,  47 

.      27 1  a 

.     .     112 

199,  265  a 

139,  296  b 

.     .     124 

.  56  n.  70 

285,  286 

240  m,  245 

116,  285 

.     171 

91.  92 

.235  6 

.       78 

.      78 

.     249 

226,  268  a 

58 

,     276 

Liliiwall'a  Settlement  Trusts,  Re  271  a 


199  b 


Lindsay  v.  Harrison 
Lippini'ott  v.  Evens  . 
V.  Mitchell     .     . 


171.  194 
.  191 
,275fl 


XXIV 


TABLE    OF   CASKS. 


Little,  Re 271  a 

Livingstone  v.  Stickles      .     .     25,  81 

Lloyd  v.  Fultou 207  6 

Locke  v.  Barbour 296 

v.  Mabbett  ....  289,  293 
Lockyer v.  Savage  ,  .  .  .78,78ft 
Loder's  Trusts,  lie  .  .  .  .  2746 
Lord  v.  Bunn  .     .     .      158,  107/  170 

Loring  v.  Loring 210 

London  &  Provincial   Bank    v. 

Bogle 274./ 

Lovett  v.  Gillender  ....   30,  113 

v.  Kingslaud  ....  30,  113 
Ludlow  v.  Bunbury  ....  38,  44 
Lumley,  Re     ....      273  e,  274  a 

Lut/.'s  Estate 2356 

Luxon  v.  Wilgus      .         .    .    .  100£ 
Lynch  v.  Utica  Ins.  Co.     .     .    .    174 


M. 


McBride  v.  Smyth 270 

McCann,  Estate  of 227 

McClearyu.  Ellis  .  .  .  134,  104  a 
Medullar,  v.  Larchar  .  .  .  .  50  a 
MacConnell  v.  Lindsay  275  6,  275  e 
McCormick  Harvesting  Machine 


Co.  v.  Gates     .     .     . 
McCulloch  v.  Gilmore   . 
McDonald  v.  Waldgrove 
McDonough  v.  Murdoch   . 
McEvuy  i'.  Appleby 
McEwen  v.  Brewster     . 
Mcllvaine  v.  Lancaster 
M'llvaine  v.  Smith        171 


174, 


.     134 

.      40 

50  a,  70 

23,  30 

.     200 

.     293 

114(i 

240/;, 

208  a 

,      23 

.     113 

50  a.  65 

124y 

40.  44 

.     172 

.       10 

50  a,  70 

.      23 

.    50/ 

.    74  a 

40,52,  124 1, 

124  k 

Mabbett,  He 80 

Machir  v.  Burroughs     .     .     .       275  5 
Machu,  Re  ......    .     22,  47 


Mclntyre,  Doe  d.  v.  Mclntyre 
Mclntyre  v.  Mclntyre  . 
McKenzie's  Appeal  .     . 
McKindrey  r.  Armstrong 
McKinster  r.  Smith  .    . 
M'Laurine  v.  Monroe    . 
McLean  r.  McKay     . 
M' Leans  v.  Macdnnald  . 
McMaster  v.  Morrison  . 
McMurry  v.  Stanley 
McRee  v.  Means  .     .    . 
McWilliams  v.  Nisley 


Mackason's  Appeal  . 
Mackay,  Ex  [>arte  . 
Macleay,  In  Re  .  . 
Magrath  v.  Morehead 
Mainwaring  v.  Baxter 
Malim  v.  Keighley  . 
Mandlebaum  v.  AIcDonell 


Mannerback's  Estate 

Manning  v.  Chambers 
Marbury  v.  Madison 
Markhain  v.  Guerrar 
Marshall  v.  Rash 

v.  Stephens 
Marston  v.  Carter 
.Martin  v.  Davis   . 

v.  Margham  . 

v.  Martin  .     . 
Marvin  r.  Smith 
Mary  Portington's  C 
Maryland  Grange  Aj 
Masse}'  v.  Barker 
Mathews  v.  Paradise 
Maurer's  Appeal  . 
May  v.  Jones   .     . 

r.  Joy nes  .     . 
Maynard  v.  Cleaves 
Mead  v.  Beim  Co. 
Meaghan,  Re  .    . 
Mebane  v.  Mebane 
Meek  v.  Briggs     . 
Megar^ee  v.  Naglee 
Mehaffey's  Estate 
Jlelson  v.  Doe 
Merrill  v.  Emery. 
Metcalf  v.  Cook    . 

v.  Scholey  .  .  . 
Metcalfe  V.  Metcalfe  22, 
Michael's  Trusts,  Re 
Mildmav's  Case  .  .  . 
Mildmav  v.  Mildmav  . 
Millar.  He  ...".. 
Miller  ■■•.  Bingham    .    . 

v.  Miller  .... 

v.  Williamson  .     . 
Miller's  Trustees  v.  Miller 
Mills  v.  Newberry       50,  50/, 
Milner's  Settlement,  Re 
Minot  i\  Tappan  . 
Mitchell  ''.  Mitchell 

v.  Morse  .     . 

v.  Starbnck  . 
Mitcheson's  Estate 


.  220,  208  a 
...  95 
39,  41-44,  55 
.  .  .  112 
...  77 
.     .       . 05  a 


19,  30,  55 

282 

75,  77 

rency  v.  Lee  240  / 

.  "  194,  274,  276 

184 

175  b 

05 

56  a 

134,240/ 

.    226 

.      92 

24  «,  182 

200  a 

.     276 

235./ 

50  a.  50  e 

5Ga.  05 

.      275  c 

.     174 

20  a,  78 

272  e 

75-77 

.      77 

.271  a 


116,  1 


280,  291 
.  275  c 
.     112 

65,  74  a 
271  a 
.  240 
274  a 
.  56 " 
.  30 
.  235  6 


TABLE   OK   CASES. 


X  X  V 


Mitch inson,  Doc  d.  <•.  Carter 
Modisett  o  Johnson 
Monroe  '•.  Trenholm      1 16 

Montague  v.  Crane  . 
Montetiore  v.  Behrens   . 
Montgomery    v.    Agricu 
Bank  ...... 

Moi  ire's  Estate,  Re   .     . 
Moore  r.  I  [egeman  .    . 

v.  Sanders    . 
Morgan  v.  Elam  .    .    . 

v.  Eyre  .... 
Mortlock's  Trust,  Re  . 
Moses  !>.  .M  icou  . 
Moulton  v.  De  ma  I  any 
Moyses  v.  Little  .  .  . 
Muggeridge's  Trusts,  Re 
Munroe  v.  Hall  .  .  . 
Murphy,  In  re      ... 

v.  Abraham       .     . 
Murray  v.  Green,    20,  24« 
Muschamp  v.  Bluet  . 
M  usgrare  v.  Sandeman 


101 

174 

,  124  s,  125, 

126,  182 

240  r 

78,  92 


29 


27  O  C 

78 

285 

73 

275  c 

J7:j.- 
58 
125  a 
1,  294 
143a 


23,  52 
91 
91 

40,54,  113 

.       34 

.      271  a 


Myers  v.  Hamilton  l'rovident  Co.    53, 

55 
Myles  o.  Burton 273  c 


N. 


Naglee's  Appeal 23 

Nash,  Doe  d.  v.  Birch  ....     101 

Nash  o.  Simpson 134 

Neale's  Appeal 270 

Neil,  Re,     164,  167  d,  167/,  17G,  261  n 

Neves  v.  Seott 2676 

Newis  r.  Lark 75 

Newkerk  o.  Newkerk    ....      23 
Newland  v.  Newland     .   50",  50/,  65 

Nice's  Appeal 210 

Nichols  v.  Eaton   78,  170.  190/  2406. 

249  6,  251,  254,  255,  258,  262, 

263,  265-267,  207  h.  207  c 

267/.  289 

v.   Lew       240  t,  240  m,  250,  205, 

207  c 

v.  Morgan 274  n 

Niekell  v.  Haadly,   199  6,240m,  245, 

265  a 

Nix  r.  Bradley     ....      274,  275 

Nixon  v.  Hose      ....    247.  27-ri  -/ 

v.  Verrv 78 


Norrie  v.  Beylea  . 

v.  Johnston  . 
Northcote,  lie. 
Noyes  v.  Blakeman 


Oakford's  Estate 
•  >'<  lallaghan  v.  Swan 
Odell  v.  Odell .     . 

<  Iddie  v.  Brown  . 

i's  Appeal   . 
1  H  ham  v.  Oldham 
Onslow,  Re.     .     . 
Ontario  Hank  v.  Roo 
< (rvis  v.  Powell    . 
Osborne  v.  Soley 

<  I'Sullivan  v.  Plielan 
Outland  v.  Bowen 

<  (verbagh  v.  Patrie 
Overman's  Appeal 

Oxley,  Ex  parte  . 
v.  Lane    .     . 


P. 

Pace  v.  Pace    .     .     . 
Pacitic  Bank  v.  Windn 

Page  c.  Way  . 
Palmer  c.  Craufurd 

».  Stevens    . 
Panlue  v.  (livens 
Paris  v.  Winterburn 
Park  c.  Matthews 
Parker  o.  Harrison 
Parnham's  Trusts,  Re 
Parry,  Re    .     .     . 
Parsons  r.  Spencer 
Partridge  v.  Cavender 
Paterson  v.  F.llis  . 
Payne,  Re  .    .    • 
Peard  v.  Kekewich 
Pearson,  Re     .    . 

o.  Dolman      £ 

v    Hart  man 
Peek  v.  Cardwell 

v.  Jenness    . 
Peebles  c.  Reading 


...  70 
225,  228 

.  .  53,  55 
291,  292 


.     .       235  h 

55,  56  e,  L05 

.      04 

112  a 

218,  270 

78 

274" 

.     174 

267  6 

,    226 

.       40 

56  a,  56  e 

25,  20 

234  235 

240  d,  259 

.       91 

40,  113 


,     182 

240  c,  268  a, 

277  a 

5,  167.;',  170 

.     .      83 

238,  240  6 

23,  30 

.       78 

.     227 

.     289 


112 

190.;,  190 1 

.  240  r- 

.       70 

.       46 

.109  6 

.       91 

80,  1116 

2M 

30 

254 

216  a 


49,  50 


XXVI 


TABLE   OF   CASES. 


Peggy  ''■  Legg 28 

Peillon  v.  Brooking      ....    271 

Pelerin  r.  Queripel 270 

Pellizzarro  v.  Reppert  .  .  .  .  56  a 
Pemberton  v.  M'Gill  .  .  271,273  c 
Pennsylvania  Co.  v.  Price  118,  124c 
Pennsylvania  Ins.  Co.  v.  Foster  275  e 
Pennyman  v.  McGrogan  .  .  40,53 
Perkins  v.  Dickinson     ....     244 

V.  Hays 237,  240  6 

Perry  v.  Cross 56  a,  72 

r.  Merritt 5fi,  58 

Peters  r.  Bain 207  6 

Philadelphia  v.  Girard  .  .  113,  124  a 
Philadelphia  Trust  Co.'s  Appeal      270 

Phillips's  Appeal 124.9 

Phillips  v   Eastwood      .     .     .58,  65  a 

r.  Grayson 275 

Phipps  v.  Ennismore     .    0    .      90-99 

Pickens  v.  Dorris 240  (/ 

Pickering  v.  Coates 276 

v.  Langdon 56  a 

Pierce  v.  Win 76 

Piercy  v.  Ptoberts,  106,  151,  180,  181 
Pike  v.  Fitzgibbon  .  .  .273  c,  273  e 
Fillers  v.  Edwards    .     .      273  e,  274  a 

Pillion's  Estate 276 

Pollock  v.  Booth 103 

Poole's  Case 77 

Pope  v.  Elliott      .     190/,  190^,  205  a 

Porcher  v.  Daniel 275  6 

Porter,  Re 51  rt 

v-  Lee 240  a; 

Portington,  Mary,  Case  of     .     75,  77 

Potter  v.  Couch  "    23,  27,  28,  29  a,  47, 

54,113,  124  r,  171.  240.,-,  267a,  267c 

Powell  v.  Boggis     22  a,  27,  46,  48. 78  a 

Power  v.  Hayne 87,  89 

Powers  v  Raymond 170 

Pratt  r.  Jenner 274  a 

Presbyterian  Congregation  v.  John- 
ston   216« 

Presley  v.  Rodgers 174 

Pritchard  v.  Bailey 54 

v.  Brown 171 

Pulliam  v.  Christy    .     .     .     .  l.'jt; 

Pullen  v.  Rianhard 216  a 


R. 


Q. 

Queade's  Trusts,  Re 
Quinn's  Estate     .     . 


.     . 272  h 
275  b.  276 


Radcliffe,  Re 271  a 

Radley  v.  Kuhn 281,  285 

Ramsdell  v.  Ramsdell  ....  50  a 
Randolph  v.  Wright  .  .  .  .  56  d 
Rawlings  v.  Bailey  ....  135 

Raynolds  v.  Hanna  .     .     .    170,207^ 

Rea  v.  Cassel 270 

Rede  v.  Fair 101 

Rees  v.  Livingston 220 

Re  id  v.  Lamar 275  b' 

Reifsnj'der  v.  Hunter  ....  23 
Renaud  v.  Tourangeau  .  .  47,  50, 105 
Rhoads  v.  Rhoads    ....  119,  124 

Rice  v.  Burnett 171 

Richardson  r.  Merrill    ....       30 

Riekert  v.  Madeira 216  a 

Riddick  v.  Cohoon  .  56  «,  56  c,  65 
Rider  v.  Mason  .  .  .  280,  291,  295 
Ridley,  Re  ....  272  d,  272  e 
Rife  v.  Geyer  215,  216,  218,  231,  240  a 
Rippon  v.  Norton      .     .  154,  107,/,  170 

Rishton  v.  Cobb 27,  47 

Roanes  r.  Archer      .     .     .    171,  241  a 

Robert  r.  West 275 

Roberts  v.  Davey      .    .     .    .     ,     101 
D.Hall     .     .     .     .     .    171.  240 re 

r.  Stevens 240/ 

v.  Watkins 273  c 

Robertson  r.  Johnston  .     .     .  176,  187 

v.  Richardson 78 

Robinson  v.  Dart 275  6 

'••  Randolph 125,  275 

V.  Wheelwright      .     .   271,  272  h 

Rochford  v.  Elackman   24,  29  a,  49,  78, 

80,  161 

Rocke  v.  Rocke 109,124 

Roe  v.  Galliers 101,103 

v.  Harrison ]oi 

Roffey  i\  Bent 78 

Rogers  v.  Ludlow      .     .    285,  291,  292 

''.  Smith 2756 

Rome  Exchange  Bank  v.  Eames    181, 

284 

Rona  v.  Meier 5(i  a 

Roosevelt  v.  Roosevelt  .     .     .  282,  286 

v.  Thurman 54 

Roper  17.  Roper     ....    83,  88.  89 

Rose  v.  Hatch 74  e 

Rosher,  Re     19,  25,  26,  39,  43,  51.  54, 

55,  75 

Ross  v.  Ross 58 


TABLE   OF   CASKS. 


xxvu 


Rowan  v.  Rowan  .     . 

.     .    .    ,190/i 

Radall  v.  Miller  .    . 

....      20 

Rudhall  p.  Milward  . 

.      .      .      .         10 

Rugely  v.  Ri  ibinson  . 

.    .     .  176,  185 

Russell's  Appeal  .     . 

.    .    .    ,216  a 

Russell   r.  Grinnell 

119,  120,  240  a, 

240  6 

....     170 

v.  Southard  .     . 

.    .    .    .267  6 

Sadler  v.  Pratt 100  a 

St.  Luke's  Church,  Appeal  of  23 

St.  Paul's   Church   v.   Attorney 

Genera] 296  c 

St.  Stephen,  Ke 1126 

Sal-bury  v.  Parsons  ....         284 

Samuel  v.  Ellis     ....   116,  190* 

r.  Salter  ....      190  .</.  L90  I 

v.  Samuel 40 

Sanderson's  Trust,  Re  .  .  .  104 
Sanford  v.  Lackland  52,  114,  250  a 
Sanger  v.  Sanger     ....       274a 

Sarel,  Re 128,  131./ 

Sargent  v.  Bennett    ....         291 

Saunders  r.  Vautier      108,  124,  124  a, 

296  c 

Sehafroth  v.  Ambs   ....         275 


Schell's  Estate      .    , 
Schermerhorn  v.  Negus 
Schwartz's  Appeal 
Scott  v.  Gibbon    . 
v.  Loraine 


v.  Nevius  280,  290,291,  293,  294 


v.  Scholej 
Sears  v.  Choate     .     . 

v.  Putnam     .     . 

r.  Russell      .     i 
Sedgwick  v.  Thomas 
Seers  v.  Hind  .     .     , 
Segrave's  Trusts,  Re 
Sevier  o.  Brown    .     , 
Shakers  v.  Ladd  .     , 
Shankland'a  Appeal    229, 
Sharington  v.  Minors 
Sharp  o.  <  losserat 
Shaw  r.  Ford  19,  0.3.  04 
Shee  0.  Hale     .     .     . 
Sheetz  v.  Hobensack 
Shouk  v.  Brown  .    - 


276 
23,  40,  43 
.  235  6 
171,  241  a 

171.241  a 


174 
114r7,  124  p 

114  a,  124/) 

72 

271a 

101 

271  a 

65 

270 

234  a.  205  a 

75 

78 

00,  74  c.  74  /' 

78,  80,  89 

227 

.       275  e 


92 

174 
10,  291,  2!)4 

'  lis 
176,  240/ 
112 
56  a,  65 
30 
28,  113 
40,  63,  55 
.     116 
272  // 
117.  188 
.  240 1 
.  277  " 
.      112 
!,  167/,  181 
276 
270 
77 
114,  120,  240  a, 
240  6 
Spaulding  v.  Woodward    ...      30 

Spear  v.  Walkley 171 

Spencer,  Re     ....     1316,  131  k 
Spindle  v.  Shreve    .    207,  267  a,  267  c 

Spittle  v.  Davie 75 

Spring  v.  Pride 120 

Springer  v.  Arundel      ....     276 

v.  Savage     .    .      126, 138, 240  i 

Stambangh's  Estate      .     •     •       235  c 

Stanger,  Re 164 

Stanley  v.  Jackman       .     .     .      125  a 

r.  Stanley 271 

v.  Thornton 190 

Stansbury  v.  Iluhner    ....      77 

Staub  v.  Williams 2401 

Steacy  v.  Rice 276 

Steib  v.  Whitehead  .     113,  124  r,  173, 
240  i 

Stephens  v.  James 78 

Steuart  r.  Williams 28 

Stevenson's  Estate 276 

Stevenson,  Doe  d.  '-.(Hover  56c,  56 d, 
60,  62,  63,  74 


Short  v.  Battle  . 
Shute,  Ex  parte  . 
Shute  v.  Harden  . 
Sillick  V.  Mason  . 
Simonds  v.  Simonds 
Simpson  v.  French 
Slade  v.  Patten  . 
Slattery  v.  Wason 
Smeed,  Re  .  . 
Smith  v.  Bell   .     . 

i'.  Clark    .     . 

r.  Dunwoody 

r.  Faught 

v.  Harrington 

v.  Lucas 

v.  Moore 

v.  Towers 

v.  Whitlock 
.Snow  v.  Poulden 
Snowdon  v.  Dales 
Snyder's  Appeal  . 
Snyder  v.  Snyder 
Sonday's  Case 
Sparhawk  v.  Cloon 


Stewart  v.  Barrow 
v.  Brady 
r.  Fletcher    ■ 
v   McMartin 

v.  Madden      . 


53 

53 

.     .    .  273 6 

.    .     .      289.  295 
.  226,  208  a,  277  a 


XXV111 


TABLE  OF  CASKS. 


Still  v.  Spear    .     . 

.  226,  2G5  a 

Stockton  Iron  Furnace  Co 

,  Re.        95 

Stogdon  <;.  Lane  .    .    . 

.     .      274  a 

v.  Lee      .    . 

.     .    270 

Stokes  v.  Cheek    . 

.     .      83 

Stone  v.  Westeott 

.       179  a 

Stones  v.  Maney  . 

.     .      54 

Stow  v.  Chapin    .     . 

.     .  294 c 

Stowell  v.  Ila>tiiifj;s 

.  56".  65 

Stretton  v.  Fi 

1 

.     02,  63 

Stringer's  Estate  . 

.     .       04 

Stroud  v.  Norman 

.     .      7'J 

Stuart  v.  Walker 

.     .    74  e 

Sumner  r.  Newton   . 

1946,  296 

Swaby's  Appeal  . 

.     .     219 

Swallleld  r.  OrtOD 

109  a 

Swift  v.  ( 'a>tle 

.      275  d 

Svkes's  Trusts,  Re 

127,  1:31  c 

Synge  v.  Synge  . 

.    93,  95 

Taaffe,  Ex  parte 91 

Taber,  Re 131 .7 

Tallx.t  v.  .levers 112 

Taltarum's  Case 6,  168 

Tamplin  v.  Miller  ....  271  a 
Tarr  v.  Williams  ....  275  c 
Tarrant  v.  Bark  us  196,  199  6,  272  g 
Tatton  v.  Mollineux  ....  77 
Taylor  d.  Atkyns  v.  Horde    .     .       77 

Tavlor  v.  Ball 74  e 

v.  Harwell    .     .     .    115,  116,  188 

v.  Mason 23 

v.  Shaw 77 

Teague's  Settlement,  Re  .  .  272  c 
Tennant'a  Estate,  Re  .  .  .  271a 
Thackara  r.  Minfzer     .     .     .     .235  a 

Thomas  v.  Folwell 275  6 

r.  Trice 271 

».  Simpson 216fl 

Thompson,  Ex  parte     ....  271  a 

r.  Ford 174 

v.  Murphy  ....  134,  2402 
Thorndike  v.  Loring  .  .  .  .114" 
Thornton  v.  Bright  .  .  272a,  2726 
Tillinghast  v.  Bradford  179,  254,  258 
Tippett's  &  Newbould's  Contract, 

Re 125, 131  6 

Titus  r.  Weeks 286 

Tobias  v.  Ketehum 285 

Todd  v.  Sawyer    .    .     .     23,  113,  134 


Tolland  County  Ins.  Co.  r.  Un- 
derwood 171,  172,  170,  199  6, 
240  in,  245 
Tollesv.  Wood     .     .     291,  292,  294  a 

Townsend  v.  Early 78 

Traynor  &  Keith,  lie  ...  .  113 
Trumbull,  Den  d.  v.  Gibbons  .  40 
Tullett  v.  Armstrong  142,  269,  274,  275 
Turley  v.  Massengill    115,  240  u,  240  w 

Turnage  /'.  Greene 110 

Turner  r.  Fowler 23 

v.  Hallowell  Sav.  Inst.    .     .     113 

v.  Sargent 125  a 

Twitty  ».Camp 54 

Twopeny  v.  l'eyton  .  150,  166,  167^ 
Tvson  v.  Blake 70 


V. 


Upham  r.  Varney 
Cpwell  v.  Halsey 


.     171 

58,  65  a 


Vail  v.  Vail 

.    286 

Van  Epps  v.  Van  Epps      .     . 

.     285 

Van  Home  v.  Campbell    50  a, 

56  e,  70 

Van  Rensselaer  v.  Dennison  . 

.       20 

Vardon's  Trusts,  Re       .     .     . 

.  272  h 

Vaux  v.  Parke 

.     224 

Vere,  Ex  parte 

.       9:; 

Verner,  Ex  parte      .     .     .     . 

.       92 

Voisev,  Ex  parte      .     .     .     . 

.       95 

Voris  v.  Renshaw     .     .     .     . 

.      54 

w. 

Waite  v.  Morland 274  a 

Waldo  v.  Cummings  ....  78 
Walker  v.  Vincent  ....  23,  47 
Wallace  v.  Anderson       162,  107/,  176 

v.  Coston 275  6 

v.  McMicken 190 

v.  Smith 190 

Ward's  Estate 124  a 

Ware  v.  Cann  .     .    19,  29  a,  47,  55.  63 

v.  Sharp 275  c 

Warner  v.  Riee  134,  176,  240  h,  268  a 
Warren's  Settlement,  Re  .  .  .  271  a 
Watkins  v.  Williams     .     58,  74/,  257 


TABLE   OF   (ASKS. 


x  x  i  \ 


gh 


Watson  and  Woods,  I 
Wead  v.  Gray      •    • 
Weale  ».  Ollive    .    . 
Weatherall  v.  Thornbu 
Weatherhead  v.  Stoddard 
Webb  v.  I  »ran      .     . 
Weeks  <••  Weeks  .    . 
Weller,  Re      .    •    . 

o.  Weller     .    . 
Wellington  t>.  Janvrin 
Wells  v.  Ely    .    .    . 

r.  McCall  .  . 
Welsh  o.  Woodbury 
Wemyss  v.  White  . 
\\  estcott  '•.  Edmunds 
Wetmore  v.  Truslow 
Wharton  v.  Masterman 
Wheatley,  lie  .  .  . 
Whitcomb  r.  Cardell 
White  v.  Jenkins 

v.  Kavanagh 

v.  Thomas  177,  190  i 

v.  White    .    114  o,  1 


Whitmore  v.  Mason 
Whittaker  v.  Kershaw  . 
Wieting  v.  Bellinger 
Wilcock's  Settlement,  Re 
Wilen's  Appeal    .    .     . 
Wilkinson  v.  Wilkinson 
Williams's  Appeals  .    . 
Williams,  Ex  parte  .     . 
V.  Ash      .... 
r.  Bradley    .    •    • 
V.  Donaldson     .     . 
v.  Jones    ...     40 
v.  Leach  .... 
■v.  Robinson      .    • 
v.  Thorn      .     .     .     . 
Willis  o.  Hiscox  . 
Williston   Seminary 
Commissioners 


.     23,  47 

56  ",  74  a 

,  78. <,   L34 

.    .    112 

.    .114  a 

.    ,216a 

.     139 

.    .      5:5 

173,  240  n 

.    .     134 

.    .    192 

125,  276 

72  a,  74  e 

'  .     .  240/ 

.    .     215 

.     .    284 

.    .  296  c 

.     .27:2/* 

.      240  w 

114  a,  173 

.     .     174 

190  I,  240  a 

11,  172,  173, 

177,24D/(. 

.     .      94 

.      274  a 

.     24,  25 

.     58,  G2 

.       124  6 

78,  78  a 

218,  27G 

.     .      95 

.     .      28 

.     .    240 

.      275  c 

43,  44,  171 

.    .    113 

.   40,  195 

,     .     .  280,  290 

19,  29  a,  47,  55 

7.   Countv 

.     .    .   ".112c 


Willoughby  v.  Middleton 

Wilson  r.  I  rreenw  nod 

0.  Wilson.  . 
Wilton  v.  Hill  . 
Winsor  v.  .Mills  . 
Winstnnley,  Re  . 
Wolfer  v.  I  femmer 
Wolstenholmi  .  Re 
Wood,  Re    .    .    . 


.       94 

.  272  . 

,273  a 

23,  40,  114  a 

.     53,  55 

.     .   74  a 

.  82,  82  a 

131  A.  274 

Woodmeston  .'.Walker   85, 14'J,  167J, 

194 

W hut!  v.  Marsh 296c 

Wooley  v.  Preston  134,  190,/.  L90  I 
Wortman  v.  Robinson  .  .  .  56  a,  ''••"> 
Wright's  Trusts,  Re  .  .  .  .2716 
Wright  v.  Brown  .  .  275  6,  27.".  e 
Wylie  v.  White    ....       172,  183 


Y. 

Yalden,  Re 58 

Yarnall's  Appeal 270 

Yates  v.  Compton 83 

v.  Yates 83 

YeapCheahNeo  v.Ong Cheng Neo  L9 
Young,  Ex  parte 92 

v.  Young    ....      275  b,  277.  c 

Young's  Settlement,  Re     .     .     .     110 

Younghusband  r.  Gisborne   1G0,  lti7  c, 

167J 

Year  Books, 
33  Ass.  pl.U  .  •  .  .19,21,101 
21  Hen.  VI.  3,  pi.  21  ...  75 
21  Hen.  VI.  33  ...  19,  20,21 
s  Hen.  VII.  10  19,20,31,77..  L01 
10  Hen.  YH.  11,  pi.  28  ...  19 
13  Hen.  VII.  22,  23  .     .     .       19,  75 

13  Hen.  VII.  24 75 

21  Hen.  VII.  8    .    .       .    .      19.  21 
21  Hen.  VII.  11      .     .     .       19,  101 


RESTRAINTS    ON    ALIENATION. 


§  1.  Some  rights  arc  in  their  nature  inalienable.  Such 
are  the  rights  not  to  be  beaten,  not  to  be  slandered,  not 
to  be  imprisoned.  The  right  to  recover  damages  for 
battery,  for  slander,  for  imprisonment,  we  can  conceive  of 
as  transferable,  but  the  original  rights  themselves  are 
incommunicable.  A  man  may,  it  is  true,  have  a  right 
that  another  person,  his  wife  or  servant,  shall  not  be 
beaten ;  but  this  right  is  not  the  right  of  the  wife  or 
servant  transferred  to  him.     It  is  an  independent  right. 

§  2.  There  are  other  rights  whose  nature  presents  no 
obstacle  to  alienation,  but  of  which  the  law,  for  one 
reason  or  another,  forbids  the  transfer.  Some,  such  as 
rights  under  ordinary  contracts,  though  not  assignable  at 
law,  are  assignable  in  equity  ;  but  a  transfer  of  others  — 
such,  for  instance,  as  the  right  to  recover  damages  lor  a 
libel  —  will  not  be  recognized  in  either  forum  ;  and, 
again,  a  statute  will  sometimes  forbid  a  transfer  which 
common  law  or  chancery  would  in  its  absence  have  al- 
lowed. Thus  the  St.  of  54  Geo.  TIT.  (1814),  c.  161,  §  28, 
restrains  the  alienation  of  the  estate  settled  by  Parlia- 
ment on  the  Duke  of  Wellington  ;  and  the  U.  S.  Rev. 
Sts.  §  4"45,  avoids  any  assignment  of  a  pension. 

1 


2  RESTRAINTS  ON  ali^jnaiiojn. 

§  3.  With  some  exceptions,  like  those  just  noted,  the 
rights  which  are  by  nature  assignable  may  be  transferred, 
if  not  at  law,  at  least  in  equity.  If  there  are  any  re- 
straints on  their  free  alienation,  such  restraints  are  not  im- 
posed on  them  by  public  policy,  but  by  the  will  of  those 
persons  who  have  created  or  transferred  them.  It  is  the 
purpose  of  this  essay  to  consider  how  far  such  restraints 
can  be  lawfully  imposed ;  in  other  words,  with  what 
limitations,  if  any,  docs  the  law  say,  "  It  is  against  public 
policy  to  allow  restraints  to  be  put  upon  transfers  which 
public  policy  does  not  forbid." 

§  4.  The  current  of  law  has  for  centuries  been  in  favor 
of  removing  old  restraints  on  alienation ;  in  favor  of  dis- 
allowing new  ones  ;  and  especially  in  favor  of  compel- 
ling a  debtor  to  apply  to  his  debts  all  property  which  he 
could  use  for  himself  or  give  at  his  pleasure  to  others. 
The  legislatures  and  the  courts  have  co-operated  to  this 
end.  Family  and  ecclesiastical  pride  and  natural  dis- 
honesty have  been  formidable  obstacles  to  this  movement, 
but  its  general  success  has  been  unmistakable.  Thus,  in 
the  first  place,  land  held  in  fee  simple  became  alienable 
(Digby,  Hist.  Law  Real  Prop.,  c.  2,  §  7 ;  c.  3,  sect.  2, 
§  14)  ;  then  the  courts  ruled  that  land  granted  to  a  man 
and  the  heirs  of  his  body  became  freely  alienable  on  the 
birth  of  issue  (Preamble  to  the  St.  of  13  Edw.  I.  c.  1,  De 
Donis)  ;  then  came  the  Mortmain  Acts,  beginning  with 
Magna  Carta  (1217),  c.  43  ;  then  the  St.  of  Westm.  II., 
13  Edw.  I.  c.  18  (1285),  enacted  that  land  could  be  taken 
on  elegit,  for  the  payment  of  debts  ;  then,  by  the  St.  of 
Westm.  ITT.,  Quia  Emptores,  18  Edw.  I.  c.  1  (1290), 
fines  on  alienation,  except  those  from  tenants  in  capite, 
were  abolished,  and  subinfeudation  done  away  with  ;  then 


RESTRAINTS   ON   ALIENATION.  3 

the  Sts.  of  Wills,  32  Hen.  VIII.  c.  1  (1540),  and  34  &  35 
Hen.  VIII.  c.  5  (154:5),  made  land  devisable;  then,  by 
the  St.  of  32  Hen.  VIII.  c.  34  (1540),  covenants  and  con- 
ditions annexed  to  estates  for  life  or  years  were  made  to 
run  for  and  against  the  assignees  of  such  estates,  and  of 
the  reversions ;  then  equity  recognized  choses  in  action  as 
assignable;  then  came  the  Sts.  of  13  Eliz.  c.  5  (1571), 
and  27  Eliz.  C.  4  (1535),  against  fraudulent  conveyances  ; 
then  the  long  series  of  Bankrupt  Acts;  then,  by  the  St. 
of  12  Car.  II.  c.  24  (16G0),  the  abolition  of  military  ten- 
ures and  of  fines  to  the  Crown  did  away  with  the  last  re- 
straints upon  the  transfer  of  estates  in  fee  simple,  either 
inter  vivos  or  by  will ;  then  the  Statute  of  Frauds,  29 
Car.  II.  c.  3,  §§  10-12  (16/6),  made  trust  estates  subject 
to  execution,  and  estates  pur  aider  vie  liable  for  the  debts 
of  deceased  tenants ;  then,  by  the  St.  of  3  &  4  W.  &  M. 
c.  14  (1691),  the  remedy  on  lands  was  extended,  so  that  an 
action  lay  against  the  devisees  of  an  obligor ;  then  came 
the  full  recognition  of  the  negotiability  of  commercial 
paper,  with  its  numerous  extensions  in  modern  times  to 
the  bonds  of  municipal,  railway,  and  other  corporations ; 
then  the  doctrine  that  general  powers  exercised  for  volun- 
teers are  assets  for  creditors,  a  doctrine  very  significant  as 
showing  the  spirit  which  animates  courts  of  equity  ;  and 
finally  the  legislation  in  England  of  the  present  century, 
by  which  real  estate  of  all  kinds,  including  estates  tail, 
may  be  sold  for  payment  of  debts. 

§  5.  In  America  the  course  of  events  has  been  the 
same,  though  in  several  respects  more  rapid.  Thus,  land 
could  be  sold  or  set  off  on  execution  here,  while  in  Eng- 
land the  clumsy  method  of  an  elegit  was  still  the  only  way 
in  which  a  creditor  could  reach  his  debtor's  real  estate. 


4  RESTRAINTS   ON   ALIENATION. 

§  6.  Some  eddies  there  have  been  at  times  in  the 
stream.  In  the  thirteenth  century,  for  instance,  estates 
tail  were  established,  by  the  statute  De  Donis,  to  be  in- 
alienable estates;  and  in  modern  times  the  courts  of 
Pennsylvania  have  given  effect  to  "  spendthrift  trusts," 
so  called.  But  two  hundred  years  after  its  passage  the 
statute  De  Donis  was  substantially  repealed  by  Taltarum's 
Case,  12  Edw.  IV.  19,  pi.  25  (14/2),  and  already  the 
Chief  Justice  of  Pennsylvania  has  spoken  of  spendthrift 
trusts  as  contravening  "  that  general  policy  which  forbids 
restraints  on  alienation  and  the  non-payment  of  honest 
debts,"  and  as  being  tolerated,  but  not  approved  of,  by  the 
law.  Overman's  Appeal,  88  Pa.  276,  281  (1879).  See 
§  234,  post. 

§  6  a.  [The  preceding  section  stands  as  in  the  first 
edition  ;  but  spendthrift  trusts  have  spread  beyond  Penn- 
sylvania, and  it  would,  to  say  the  least,  be  premature  to 
speak  of  their  introduction  as  an  eddy.  Another  move- 
ment in  the  same  direction  is  seen  in  the  statutes  by 
which  many  of  the  United  States  exempt  large  parts  of  a 
debtor's  property  from  execution.  Of  these  modern  de- 
velopments the  former  seems  largely  due  to  sentimental 
considerations ;  the  latter  rather  to  the  dislike  of  creditors 
as  a  class  so  common  in  agricultural  communities.  See 
§  203,  post,  note.] 

§  7.  Such  errors  as  have  arisen  in  discussing  restraints 
on  alienation  are  largely  due  to  the  subject  having  been 
dealt  with  disconnectedly.  If  the  restraint  was  in  the 
form  of  a  condition,  it  was  treated  with  conditions.  If 
it  was  in  the  form  of  a  direction  to  a  trustee,  it  was  treated 
with  trusts.  Involuntary  alienation,  or  liability  for  debts, 
has  been  considered  without  reference  to  voluntary  trans- 


RESTRAINTS   ON    ALIENATION.  5 

fers.  It  will  be  a  gain  to  clear  thought  to  bring  the  whole 
subject  together. 

§  8.  The  Rule  against  Perpetuities  is  sometimes  spoken 
of  as  aimed  at  restraints  against  alienation.  In  a  sense 
this  is  true.  Executory  devises  and  other  future  interests, 
to  limit  which  is  the  object  of  the  rule,  render  an  estate 
less  marketable,  and  therefore  the  rule  does,  to  this  ex- 
tent, favor  alienation.  But,  speaking  strictly,  and  as  the 
expression  is  used  here,  a  future  interest  is  not  a  restraint 
on  the  alienation  of  an  estate  unless  the  contingency  upon 
which  the  future  interest  depends  is  itself  the  alienation 
of  the  estate.  The  owner  of  an  estate  subject  to  a  future 
interest  can  grant  all  that  he  has  got,  and  the  grantee  has 
everything  that  the  grantor  would  have  had  if  the  trans- 
fer had  not  been  made.1 

§  9.  In  every  case  of  an  alleged  attempted  restraint 
upon  alienation  two  questions  arise:  1.  What  restraint 
was  it  intended  to  impose  ?  2.  Is  the  intended  restraint 
law  t'ul  ?  It  is  the  second  class  of  questions,  viz.  what 
restraints  on  alienation  arc  lawful,  which  will  be  consid- 
ered. The  first  class  of  questions,  or  questions  of  con- 
struction, will  be  spoken  of  only  incidentally.2 

§  10.  Restraints  on  alienation  are  sought  to  be  effected 
in  two  ways  :  — 

First.  No  attempt  is  made  to  attacli  any  character  of 

1  [As  to  the  gradual  differentiation  of  the  Rule  against  Perpetuities  from 
the  general  doctrines  on  restraint  upon  alienation,  see  an  article  by  the 
author,  "  ltemoteness  of  Charitable  Gifts,"  7  Harvard  Law  Rev.,  406  109- 
412.] 

2  '['lie  cases  in  which  these  questions  of  construction  present  the  most 
difficulty  arise  on  limitations  over  of  life  interests  upon  alienation,  the  doubt 
being  whether  involuntary  alienation,  such  as  bankruptcy,  is  intended  by 
the  language  used.  The  learned  reader  will  find  the  eases  collected  in 
2  Jarm.  Wills  (5th  ed.),  870-877. 


6  RESTRAINTS  ON   ALIENATION. 

inalienability  to  the  estate,  but  the  estate  is  given  either 
on  condition  that  it  shall  not  be  alienated,  or  until  it  is 
alienated  ;  that  is,  it  is  subjeet  either  to  a  condition  for 
breach  of  which  the  grantor  may  enter,  or  to  a  limitation 
which,  upon  alienation,  puts  an  end  to  it  without  entry. 
Tin'  owner  of  the  estate  may  assign  it  as  he  pleases ; 
he  is  not  compelled  to  keep  it  against  his  will,  but  on 
assignment  it  is  forfeited,  or  liable  to  forfeiture. 

Second.  The  estate  may  be  declared  inalienable.  If 
this  declaration  is  legally  valid,  then  the  holder  of  the 
estate  cannot  assign  it;  any  attempted  assignment  is  in- 
operative; the  estate  remains  with  him;  he  cannot  rid 
himself  of  it. 

The  subjeet  will  be  considered  under  these  two  heads, 
and  under  each  in  turn  will  be  taken  up,  —  (1.)  Estates 
in  Fee  Simple;  (2.)  Estates  Tail;  (3.)  Estates  for  Life; 
(4.)  Estates  for  Years.  In  the  1st,  3d,  and  4th,  absolute 
interests,  life  interests,  and  interests  for  years  in  personal 
property,  will  be  respectively  included.  There  is  no  in- 
terest in  personal  property  corresponding  to  an  estate  tail. 


FORFEITURE  FOR  ALIENATION. 


I. 

FORFEITURE    FOR    ALIENATION. 


A. 

ESTATES   IN   FEE   SIMPLE. 

§  11.  The  alienation  against  which  the  threat  of  for- 
feiture is  made  may  be,  (1.)  alienation  generally,  i.  e.  to 
any  one,  at  any  time,  under  any  circumstances ;  or  it  may 
be  alienation  (2.)  to  certain  persons ;  or  (3.)  within  a  certain 
time  ;  or  (4.)  in  a  certain  manner,  as  by  mortgage.  Closely 
connected  is  (5.)  the  question  whether  an  estate  in  fee 
simple  can  be  forfeited  for  failure  to  alienate  it ;  the  shape 
in  which  this  question  usually  arises  in  practice  being  that 
of  a  gift  over  of  property,  in  case  the  owner  should  die 
without  having  disposed  of  it  in  his  lifetime  or  by  will. 

§  12.  Upon  the  point  of  validity,  it  is  immaterial 
whether  the  provision  intended  to  terminate  an  estate  is 
in  the  form  of  a  condition  or  of  a  conditional  limitation. 
As  we  shall  see,  it  has  sometimes  been  said  that  in  the 
case  of  a  life  estate  there  is  a  difference  in  this  respect  be- 
tween a  condition  and  a  limitation,  (§§  79,  80,  post,)  but 
no  distinction  has  ever  been  suggested  in  the  case  of  a 
fee.  [But  see  Camp  v.  Cleary,  76  Va.  140,  §  29  a, 
post.'] 


8  RESTRAINTS  ON    ALIENATION. 

1.    Unqualified  Restraint  on  Alienation. 

§  13.  In  a  fee  simple  a  condition  or  conditional  limita- 
tion on  alienation  generally  is  void.  This  is  now  past 
dispute. 

£  1  1.  In  the  earliest  times  it  is  doubtful  how  far  land 
was  alienable.  [Digby,  Hist.  Law  Real  Prop.,  c.  1,  sect.  1, 
§  2.]  At  the  end  of  the  twelfth  century,  it  appears,  from 
(Jlanville,  that  the  holder  of  land  could  not  alienate  the 
whole  of  it  from  his  heir ;  the  lord,  however,  of  whom  the 
land  was  held  does  not  seem  to  have  been  considered  as 
having  any  rights  in  the  matter.  (Jlanville,  lib.  7,  c.  1 
(Beames's  ed.),  pp.  137-150;   Digby,  c.  2,  §  7. 

§  15.  But  in  Magna  Carta,  c.  39  (1217),  it  is  provided, 
';  Xullns  liber  homo  de  cetero  det  amplius  alicui  vel  ven- 
dat  de  terra  sua  quam  ut  de  residuo  terrse  suae  possit 
sufficienter  fieri  domino  feodi  servitium  ci  debitum  quod 
pertinet  ad  feodum  illud." 

§  1G.  Bracton,  who  wrote  in  the  reign  of  Henry  ITT., 
says  that  it  is  "  gencraliter  verum  "  that  the  tenant  can 
alienate  the  land  at  his  pleasure,  "nisi  ad  hoc  specialiter 
agatur  in  possessione  ne  possit,"  thus  recognizing  the  le- 
gality of  restraints  upon  alienation.  Bract.,  lib.  2,  c.  19, 
fol.  45.  [So,  in  another  place,  he  says  land  can  be  given 
to  "viri  religiosi,"  or  to  Jews,  "  nisi  modus  donationis  in- 
ducat  contrarium,  scilicet  quod  licitum  sit  donatorio  rem 
datam  dare  vel  vcndere  cui  voluerit,  cxecptis  viris  religiosis 
et  Judseis,  et  quod  talibus  personis  dari  non  poterit  sicut 
aliis,  nulla  ratio  vel  necessitas  illud  inducit,  nisi  tantum 
modus  donationis."  Id.,  lib.  2,  c.  5,  fol.  13.]  Sec  Digby, 
c.  3,  sect.  2,  §  14. 

§  17-    The  statute  of  Quia  Emptorcs,  18  Edw.  I.  c.  1 


FORFEITURE   FOR   ALIENATION.  9 

(1290),   forbade  subinfeudation,  but  gave  full  power   to 
tenants  to  alienate  their  land  at  pleasure. 

§  II!.  Britton  was  written  in  the  reign  of  Edward  I., 
but  after  the  statute  of  Quia  Emptores,  which  is  spoken 
of  in  lib.  3,  c.  4,  §  20,  as  "  novele  eonstitueioun."  It  is 
there  said  (lib.  2,  c.  8,  §  6),  "  Sometimes  a  gift  may  be 
enlarged,  sometimes  restricted.  ...  It  may  be  restricted 
as  follows.  ...  In  another  way  thus :  '  to  hold  to  him 
and  his  heirs  without  making  alienation,'  or  'without 
making  alienation  to  such  a  one,'  or  '  except  to  such  a 
one.' "  See  the  note  of  the  learned  editor,  Mr.  Nichols, 
lib.  2,  c.  5,  §  2,  that  in  the  time  of  Britton  the  effect  of 
the  statute  of  Quia  Emptores  was  not  apparent. 

§  19.  But  in  33  Ass.  pi.  11  (1359),  Green,  J.  said 
that  a  condition  not  to  alien  upon  a  feoffment  in  fee  was 
void  ;  [in  10  Hen.  VI.  (1438),  as  reported  Stath.  Abr. 
Conditions,  it  was  said  (<i><.  per  Serjeant  Newton)  that  a 
condition  against  alienation  annexed  to  a  term  for  years 
was  good,  but  that  "  if  I  enfeoff  a  man  on  such  a  condi- 
tion, the  condition  is  void,  because  it  is  repugnant  (con- 
trarious)  "],  and  in  21  Hen.  VI.  33,  pi.  21  (1443),  Paston 
and  Yelverton,  JJ.,  agreed  that  such  a  condition  was  bad.1 
In  8  Hen.  VII.  10,  pi.  3  (1493),  Huse,  C.  J.,  and  Fair- 
fax, J.,  said  the  same.  In  10  Hen.  VII.  11,  pi.  28 
(1495),  Serjeant  Keeble  said,  arguendo,  that  if  a  grant 
be  made  to  a  man  in  fee,  leaving  out  the  word  "  assigns," 
with  a  proviso  that  he  does  not  alien,  the  condition  is 
good,  "  quod  fuit  negatum  per  plurimos."  And  finally,  in 
13  Hen.  VII.  22,  23,  pi.  9  (1498),  upon  Serjeant  Keeble 
attempting  to  argue  that  a  condition  on  a  fee  simple  not 

1  [According  to  the  report  of  this  case,  the  same  thing  was  said  24  Ass. 
pi.  8  (1350),  but  24  Ass.  as  printed  contains  only  seven  placita.] 


10  RESTRAINTS  ON   ALIENATION. 

to  alien  was  good,  "  Bryan,  C.  J.,  interrupted  him,  and 
said  that  they  would  not  hear  him  argue  this  conceit,  be- 
cause it  is  simply  contrary  to  common  learning,  and  is  now, 
so  to  speak,  a  principle  (in  mannereun  principal),  because 
in  this  way  we  should  transpose  all  our  old  precedents. 
Therefore  speak  no  more  of  this  point."  [But  see  Ser- 
jeant KingsmiU's  remark,  21  Hen.  VII.  11  (1506).]  The 
matter  is  now  at  rest.  21  Hen.  VII.  8.  Doct.  &  St., 
Dial.  I.  cc.  24,  29 ;  Dial.  II.  c.  35.  Lit.  §  360.  Co.  Lit. 
206  6,  223  a.  [Shop.  Touch.  129.]  Ware  v.  Cann,  10 
B.  &  C.  433.  Willis  v.  Hiscox,  4  Myl.  &  Cr.  197,  201, 
202.  [Re  Rosher,  L.  R  26  Ch.  D.  801.  See  Bragg  v. 
Taund,  New  Benl.  89;]  Hood  v.  Oglander,  34  Beav.  513; 
[Shaw  v.  Ford,  7  Ch.  D.  669,  6/4 ;  Martin  v.  Martin, 
19  L.  R.  Ir.  72,  80;  Yeap  Cheah  Neo  v.  Ong  Cheng  Neo, 
L.  R.  6  P.  C.  381.  The  law  is  the  same  with  equitable 
estates  in  fee  simple.  Re  Dugdale,  38  Ch.  D.  176.  Cor- 
bett  v.  Corbett,  13  P.  D.  136  ;  s.  c.  14  P.  Div.  7-1] 

§  20.  The  reason  sometimes  given  for  this  prohibition 
of  conditions  against  alienation  is  that  the  statute  of  Quia 
Emptores,  by  putting  an  end  to  subinfeudation,  did  away 
with  reversionary  interests  after  a  fee  simple.  This  was 
the  reason  given  by  Yclvcrton,  J.,  21  Hen.  VI.  33.  So 
in  8  Hen.  VII.  10,  Iluse,  C.  J.,  and  Fairfax,  J.,  said  that 
a  gift  in  tail  or  a  lease  for  life  might  be  made  on  condition 
not  to  alien,  because  there  was  a  reversion,  otherwise  with 
a  feoffment.  In  Ruddall  v.  Miller,  1  Leon.  298,  Serjeant 
Fleetwood,  arguendo,  said,  "  Before  the  statute  of  Quia 

1  [A  covenant  not  to  alien  land  held  in  fee  simple  has  heen  said  to  be 
good  as  an  obligation.  Co.  Lit.  206  b ;  Broad  v.  Jollyfe,  Cro.  Jac.  596. 
But  see  1  Sm.  L.  C.  (9th  ed.J  461  ;  Marsden  on  Perp.  89.  Cf.  §  77, 
post.  Of  course  such  a  covenant  would  not  run  at  law,  nor  bind  an  assignee 
in  equity.     Cf.  McLean  v.  McKay,  L.  R.  5  P.  C.  327.] 


FORFEITURE   FOR   ALIENATION.  11 

Emptorcs  Terrarum,  if  A.  had  enfeoffed  B.,  upon  condition 
that  B.  nor  his  heirs  should  alien,  the  same  was  a  good 
condition  (which  was  granted  per  curiam}."  And  thus 
Lord  Coke  :  "  So  it  is  said  that  then  [i.  e.  before  the 
statute  Quia  Emptorcs]  the  lord  might  have  restrained 
the  alienation  of  his  tenant  by  condition,  because  the  lord 
had  a  possibility  of  reverter ;  and  so  it  is  in  the  King's 
case  at  this  day,  because  he  may  reserve  a  tenure  to  him- 
self." Co.  Lit.  223  a.  And  see  \_De  Peyster  v.  Michael, 
6  N.  Y.  467,  491,  492  ;]  Van  Rensselaer  v.  Dennisou,  35 
N.  Y.  393  ;  Mandlebaum  v.  McDoncll,  29  Mich.  78,  95  ; 
[Murray  v.  Green,  64  Cal.  363,  367-] 

§  21.  This  reason  serves  to  justify  the  distinction  which 
undoubtedly  exists  between  conditions  against  alienation 
attached  to  fees,  and  those  attached  to  lesser  estates.  But, 
notwithstanding  this,  the  absence  of  reversionary  interest 
cannot  be, the  real  reason  for  the  rule,  for  that  would 
strike  at  the  root,  not  only  of  unqualified  conditions 
against  alienation,  but  of  qualified  conditions  against  alien- 
ation, and  indeed  of  all  conditions  on  fees  whatever. 
Paston,  J.,  21  Hen.  VI.  33,  in  opposition  to  Yelverton, 
says  that  the  presence  or  absence  of  a  reversion  is  not  the 
test  of  the  validity  of  a  condition,  and  that  the  reason  for 
holding  a  condition  invalid  is  "  le  inconveniencie  "  ;  and  in 
33  Ass.  pi.  11,  it  is  said  that  a  condition  on  a  fee  not  to 
alien  would  be  bad,  for  it  would  be  "  discordant  a  la  ley  " 
that  the  tenant  should  have  a  fee,  and  yet  could  not  alien. 
See  1  Sm.  L.  C.  (7th  Am.  ed.)  *101  ;  20  Am.  Law  Reg. 
(n.  s.)  185  et  seq.  In  truth,  the  rule  seems  not  to  allow 
nor  call  for  any  reason  except  public  policy.1 

1  The  statement  of  Lord  Coke,  Co.  Lit.  223  a,  that  a  condition  not  to 
alien,  attached  to  a  grant  in  fee  by  the  King,  is  valid,  has  been  repeated. 


12  RESTRAINTS  OX   ALIENATION. 

§  22.  In  Re  Machu,  21  Ch.  D.  838,  A.  gave  land  by 
will  to  lii.s  daughter  E.  and  her  heirs,  "subject,  neverthe- 
less, to  the  proviso  hereinafter  contained  for  determining 

her  estate  and  interest  on  the  event  therein  mentioned." 
The  proviso  was,  that  if  E.  should  be  declared  a  bankrupt, 
or  liquidate  with  her  creditors,  or  avail  herself  of  any  act 
for  the  relief  of  insolvent  debtors,  then  the  devise  to  her 
should  be  void,  and  the  premises  devised  to  her  should  go 
to  her  children.  Chitty,  J.  held  that  the  proviso  was 
void.1     [So  in  Be  Dugdale,  38  Ch.  1).  I/O,  land  was  given 

Shep.  Touch.  130  ;  Chitty,  Prerog.,  386,  note  h,  388;  Fowler  v.  Fowler,  16 
Ir.  Ch.  507.  But  its  sole  support  is  a  did  tun  of  Vavasour,  J.,  21  Hen. 
VII.  8  a,  pi.  6  (1506),  and  the  reason  given  by  him  is  not  that  suj 
by  Lord  Coke,  hut  because  "every  deed  that  the  King  makes  shall  he 
taken  most  beneficially  for  him."  See  [Fisher  v.  Gaffney,  5  N.  S.  W. 
L.  R.  276  ;]  20  Am.  Law  Reg.  (n.  s.)  188.  [In  Doct.  &  St.,  Dial.  II.  c.  35, 
the  author  supposes  that  on  afeoffmenl  made  to  an  abbot  and  his  successors 
a  condition  against  alienation  would  be  good  ;  and  Preston,  in  his  edition 
of  the  Touchstone,  p.  130,  assumes  that  this  is  because  the  grantor  has  a 
right  to  the  land  on  the  dissolution  of  the  corporation  ;  hut  there  is  no 
such  suggestion  in  Doct.  &  St.  On  the  alleged  right  of  the  feoffor  to  the 
land  on  the  dissolution  of  the  corporation,  see  Gray,  Rule  againsl  Perpetu- 
ities, §§  44-51.] 

1  The  learned  judge  considered  that  the  proviso  purported  to  create  a 
condition,  and  not  a  conditional  limitation.  It  certainly  did  not  purport 
to  create  a  condition,  for  upon  a  condition  there  can  he  no  gift  over  to  a 
third  person;  none  but  the  heir  can  take  advantage  of  it.  The  term  "  con- 
ditional  limitation"  is  used  in  two  senses.  In  the  sense  in  which  it  is 
generally  employed  by  courts  and  writers,  it  is  a  generic  term,  comprising 
two  species,  (1.)  shifting  uses,  and  (2.)  shifting  executory  devises,  ami  is  a 
proviso  cutting  short  an  estate  previously  created,  ami  substituting  another 
in  its  stead.  This  is  the  sense  in  which  it  is  used  in  this  essay.  It  is  very 
convenient  to  have  such  a  common  term  for  shifting  uses  and  executory 
devises  ;  hut,  unfortunately,  some  writers  have  confused  legal  nomencla- 
ture by  attempting  to  use  it  in  another  sense.  With  them  it  means  a 
proviso  operating  to  determine  an  estate  by  its  intrinsic  force,  but  not  by 
itself  substituting  another.  In  a  devise  to  A.  and  his  heirs,  but  if  A.  dies 
unmarried  then  to  /'.  and  his  heirs,  the  words  in  italics  form  a  conditional 
"limitation  in  the  first  sense  ;  while  in  a  devise  to  A.  so  long  as  he  remains 


FORFEITURE  FOR  ALIENATION.  13 

in  trust  for  A.  and  his  heirs,  but  if  A.  should  do,  execute, 
commit,  or  suffer  any  act  or  thing  whereby  or  by  opera- 
tion of  law  he  would  be  deprived  of  the  personal  bene- 
ficial enjoyment  of  the  property,  then  it  should  be  held  in 
trust  for  A.'s  wife  and  children.  The  provision  was  held 
void.  See  Corbett  v.  Corbett,  13  P.  D.  13G  ;  s.  c.  14  P. 
Div.  7 ;  Metcalfe  v.  Metcalfe,  43  Ch.  D.  633.  But  cf. 
Pearson  v.  Dolman,  L.  R.  315,  320,  §  4Q,posW] 

§  22  a.  [Abstaining  from  alienation  may  be  made  a 
condition  precedent  to  the  vesting  of  an  estate  in  fee,  but 

unmarried,  the  words  in  italics  form  a  conditional  limitation  in  the  second 
sense.  A  proviso  of  this  latter  kind  is  generally  called  a  special  limita- 
tion. Among  the  treatises  in  which  the  term  "  conditional  limitation  "  is 
used  in  the  first  sense  are,  Fearne,  Cont.  Rem.  14,  15  ;  Butler,  notes  to 
Fearne,  Cont.  Rem.  381;  Smith,  Executory  Interests,  §  149;  3  Prest.  Abs. 
284  ;  Williams  on  Settlements,  21 ;  2  Cruise,  Dig.  238  ;  4  Kent,  Conim. 
249,  250.  See  Gilbert,  Uses  (Sugd.  ed.),  178,  note.  [In  Re  Dugdale,  38 
Ch.  D.  176,  179,  180,  Kay,  J.  seems  to  use  "conditional  limitations"  as 
not  including  shifting  executory  devises,  and  as  a  synonym  merely  of  shift- 
ing uses.  This  makes  the  term  superfluous,  and  is  contrary  to  the  best 
usage.]  Those  treatises  in  which  the  term  is  used  in  the  second  sense  are, 
1  Sand.  Uses  (5th  ed.),  155,  156;  1  Steph.  Comm.  (8th  ed.)  295,  note 
(k)  ;  1  Leake,  Land  Law,  216,  note  (a);  Tud.  L.  C.  on  Real  Prop.  (3d 
ed.)  347,  348. 

In  lie  Machu,  the  gift  certainly  purported  to  be  a  conditional  limitation 
in  the  usual  sense.  Whether  in  the  second  sense  of  the  term  a  fee  simple 
can  have  a  conditional  limitation,  see  1  Leake,  Land  Law,  36,  note(tf); 
[Gray,  Rule  against  Perpetuities,  §§  31-42  ;  First  Univ.  Soc.  v.  Boland, 
155  Mass.  171.]  Chitty,  J.  left  undecided  the  question  whether  a  fee 
could  have  a  conditional  limitation  in  this  sense  at  all.  P.  843.  He 
seemed  to  think  that,  if  a  conditional  limitation  in  this  sense  could  exist 
at  all,  the  validity  of  such  a  limitation  conditioned  on  bankruptcy  was 
arguable,  although  apparently  his  inclination  was  against  it.  P.  842. 
But  it  is  submitted,  that  there  can  be  no  rational  distinction  between 
restraining  the  alienation  of  a  fee  by  a  conditional  limitation  in  the  usual 
sense,  and  restraining  it  by  a  conditional  limitation  in  the  second  sensp,  — 
that  is,  by  a  special  limitation,  — even  if  a  fee  can  be  created  with  any 
special  limitation  at  all.  See  §§  79,  80,  infra.  [But  see  Camp  v.  Clcary, 
76  Va.  140,  §  29  a,  post.] 


14  RESTRAINTS  OX  ALIENATION. 

if  an  estate  in  fee  is  vested,  though  not  in  possession,  yet 
in  reversion  or  remainder,  a  condition  against  alienation  is 
bad.  See  Mandlebaum  v.McDonell,  29  Mich.  78  ;  Poivell 
v.  Boggis,  35  Beav.  535.1] 

§  23.  As  in  England,  so  in  America,  a  condition,  or  a 
conditional  limitation,  restraining  an  owner  in  fee  simple 
from  selling  his  land,  is  bad.  [Putter  v.  Couch,  141  U.  S. 
296.]  Henning  v.  Harrison,  13  Bush,  723.  Purdue  v. 
Givens,  1  Jones,  Eq.  306.  [Jftmroe  v.  JTiocZZ,  97  N.  C. 
206.]  Schermerhom  v.  Negus,  1  Denio,  448.  U *^//.rr  v. 
Vincent,  19  Pa.  369.  Naylees  Appeal,  33  Pa.  89.  Lw/o 
v.  Walker,  28  Grant,  216.  [ifo  ir«teo»  and  HWs,  14 
Out.  48.  Kahanaiki  v.  Khala  Sugar  Co.,  6  Hawaii,  694.] 
These  cases  are  decisions  directly  in  point,  and  oVcta  to 
the  same  effect  are  found  in  abundance  ;  c.  g.  in  Taylor  v. 
Mason,  9  Wheat.  325,  350;  McDonogh  v.  Murdoch,  15 
How.  367,  412;  Andrews  v.  Spurlin,  35  Ind.  262,  268; 
[A/few  v.  CW(/V,  109  Ind.  476,  483  ;]  Deering  v.  TVic&er, 
55  Me.  284,  289;  Hawley  v.  Northampton,  8  Mass.  3,  37; 
Grayv.  Blanchard,  8  Pick.  284,  289;  [Todd  v.  Sawyer, 
147  Mass.  570;  Wtnsor  v.  Mills,  157  Mass.  362,  364;] 
'Turner  v.  Fowler,  10  Watts,  325  ;  Reifsnydcr  v.  Hunter, 
19  Pa.  41  ;  [Jauretche  v.  Proctor,  48  Pa.  466  ;  Appeal  of 
St.  Lukes  Church,  1  Walk.  (Pa.)  283;]  Gran<  v.  Car- 
pewter,  8  R,  I.  36  ;  Doe  d.  Mclntyre  v.  Mclntyre,  7  U.  C. 
Q.  B.  156  ;  McMaster  v.  Morrison,  14  Grant,  138,  141  ; 
Crawford  v.  Lhw/?/,  23  Grant,  244,  250  ;  Mfow  v.  Fulton, 
24  Grant,  422  ;  [James  v.  GW,  13  Vict.  L.  R  908,  913.] 
See  Dehorty  v.  Jones,  2  Harrington  (Del.),  56,  note;  A^ew;- 
A-erA*.  v.  Newkerk,  2  Caines,  345  ;  \_Bassett  v.  Budlong,  77 
Mich.  338  ;  §§  113  e^  sea.,  port.] 

1  [The  head  note  in  Powell  v.  Boggis  gives  no  idea  of  the  decision.] 


FORFEITURE   FOR   ALIENATION.  15 

§  24.  Tlic  only  suggestion  to  the  contrary  is  a  remark 
in  Bridge  v.  Ward,  35  Wis.  (>H7.  In  this  case  a  testator 
devised  to  liis  son  a  life  estate  in  land,  and  restricted  him 
from  selling  it.  It  was  held  that  the  son's  interest  could 
be  sold  on  execution  against  him.  The  court  say,  "  It  is 
quite  probable  that  the  will  might  have  been  so  framed 
that  an  alienation  of  the  plaintiff's  interest,"  either  volun- 
tary or  involuntary,  "would  determine  his  estate.".  They 
cite  a  passage  from  Redfield  on  Wills  to  that  effect,  and 
then  add:  "And  again  he  [Redfield]  states  as  a  rule, 
'that  either  a  life  or  an  absolute  estate  by  bequest  may  be 
legally  so  framed  as  to  cease  upon  the  happening  of  a  par- 
ticular event.' "  The  passage  cited  from  Redfield  is  in  the 
second  volume  (3d  ed.),  p.  289.  He  is  giving  the  propo- 
sitions to  be  deduced  from  the  opinion  of  Turner,  V.  C, 
in  Bochford  v.  Hackman,  9  Hare,  475,  and  says  they  are  : 
"  (1.)  That  property  cannot  be  given  either  for  life  or  ab- 
solutely, without  the  power  of  alienation  being  incident  to 
the  gift.  (2.)  That  either  a  life  or  an  absolute  estate  by 
bequest  may  be  legally  so  framed  as  to  cease  upon  the 
happening  of  a  particular  event."  It  might  seem  from  the 
context  that  it  wras  intended  to  imply  that  an  absolute 
estate  might  be  made  to  cease  upon  the  happening  of  an 
attempt  at  alienation,  but  the  learned  commentator  does 
not  say  so,  and  it  is  perhaps  unnecessary  to  remark  that 
no  semblance  of  such  an  idea  is  to  be  found  in  Bochford 
v.  Hackman.  [See  §  49,  post.  In  Wieting  v.  Be/linger, 
50  Hun,  324,  329,  there  are  some  careless  expressions, 
but  probably  no  intention  to  contradict  the  established 
doctrine.] 

§  24  a.  [In  Murray  v.  Green,  64  Cal.  363,  land  was 
conveyed  to  A.  and  his  heirs,  as  to  one  undivided  half  to 


16  RESTRAINTS  ON  ALIENATION. 

the  use  of  A.  and  his  heirs,  and  as  to  the  other  half  in 
trust  for  J3.  and  his  heirs,  provided  that  A.  should  nut  sell 
either  half  without  B.'s  consent.  It  was  held  that,  so  far 
as  A.'s  own  half  was  concerned,  the  condition  was  void.] 

§  25.  [In  Anon.,  8  Hen.  VII.  10  (1493),  the  defendant 
in  replevin  avowed  that  J.  held  of  him  by  homage,  fealty, 
and  rent ;  that  at  each  alienation  by  his  tenant  the  de- 
fendant and  his  ancestors  prescribed  to  havcthc  best  beast 
for  a  heriot,  unless  the  alienee  gave  notice  to  the  lord 
before  the  death  of  the  feoffor ;  that  J.  had  aliened  to  the 
plaintiff,  and  died  ;  that  the  plaintiff  gave  him  no  notice ; 
and  that  he  distrained  for  the  heriot.  Huse,  C.  J.,  and 
Fairfax,  J.,  thought  the  prescription  good.  In  the  Touch- 
stone it  is  said:  "  In  Pasch.  19  Jac.  B.  R.,  it  was  held  by 
Just.  Dodridge  and  Chamberlain  that  if  a  feoffment  be  on 
condition  that  if  the  feoffee  alien  he  shall  pay  10/.  to  the 
feoffor,  that  this  is  a  good  condition  ;  but  Ch.  Just.  [Ley] 
and  Just.  Houghton  held  the  contrary,  for  then  this  shall 
be  a  circumvention  of  the  law."  Shep.  Touch.  130.  This 
ease  is  reported  sub  nom.  Bragge  v.  Stanner,  Palm.  1/2, 
and  sub  nam.  Bragg  v.  Tauncl,  New  Bcnl.  89.  It  was 
assumpsit  on  an  agreement  by  the  defendant  to  pay  100/. 
if  he  should  longer  exercise  the  trade  of  a  linen  draper  in 
Newgate  market ;  so  the  alleged  holding  could  have  been 
only  a  dictum;  it  is  not  mentioned  in  cither  report.  In 
Billing  v.  Welch,  Ir.  L.  R.  6  C.  L.  88,  101,  102,  the  pas- 
sage in  the  Touchstone  was  referred  to,  and  the  opinion 
of  the  Chief  Justice  and  Houghton,  J.  was  approved  and 
followed  (see  §  37,  post)  ;  and  it  was  also  approved  and 
followed  in  Re  Rosher,  26  Ch.  D.  801  (see  §  51,  post).]  In 
King  v.  Burclicll,  Amb.  379,  a  provision  that  an  estate 
tail  should  be  charged  with  a  sum  of  money  on  its  aliena- 


FORFEITURE  FOR  ALIENATION.  17 

tion  was  held  void,  and  ;i  like  condition  on  a  fee  simple 

has  been  held  bad  in  New  York.  De  Peyster  v.  Michael, 
6  N.  Y.  467-  Overbagh  v.  Patrie,  8  Barb.  28;  s.  c.  G 
N.  Y.  510,  overruling  the  dicta  of  Piatt,  J.,  in  Jackson  v. 
Schutz,  18  Johns.  174,  184-187,  and  of  Nelson,  C.  J.,  in 
Livingston  v.  Stickles,  7  Hill,  253,  :2o7.  The  question 
would  now  doubtless  everywhere  meet  a  like  decision.  [In 
Wieting  v.  Bellinger,  50  Hun,  324,  a  testator  devised  land 
to  his  son  C,  on  condition  that  if  C.  became  so  embarrassed 
that  the  land  had  to  be  sold  by  sheriff's  or  other  public 
sale,  $1500  should  be  kept  out  of  the  sale  and  divided 
among  all  the  testator's  children.  It  was  held  that  the 
condition  was  void.] 

§  25  a.  [In  Hothjdon  v.  Clark,  84  Me.  314,  A.  conveyed 
land  to  B.  in  fee,  and  B.,  at  the  same  time,  gave  a  mort- 
gage back  to  A.  to  secure  a  bond  conditioned  that  B.  would 
not  convey  or  assign  the  land  in  any  other  way  or  for  any 
other  consideration  than  to  secure  his  own  support  and  main- 
tenance during  his  life,  and  that,  if  the  land  was  conveyed 
for  that  purpose,  the  balance  between  the  compensation 
for  said  support  and  the  just  valuation  of  the  premises 
should  be  paid  to  certain  of  B.'s  children.  B.  conveyed  the 
land  to  C,  taking  back  a  mortgage  to  secure  his  support 
during  his  life.  B.  and  C.  brought  a  bill  in  equity  to  have 
the  mortgage  to  A.  set  aside  as  a  cloud  on  their  tit  les.  The 
bill  was  dismissed,  the  court  holding  that  the  mortgage 
was  not  void.  The  decision  seems  questionable.  B.  held 
the  land  in  fee  simple  subject  to  no  trust  except  in  the 
case  of  his  alienating  it ;  but,  if  he  sold,  part  of  the  price 
was  to  be  paid  over  to  others;  this  seems  an  illegal  pro- 
vision for  forfeiture.  On  the  validity  of  a  bond  conditioned 
not  to  alienate  a  fee  simple,  see  §§  19,  ante,  77,  post.] 


IS  RESTRAINTS  ON  ALIENATION. 

§  2G.  In  Jackson  v.  Schutz,  18  Johns.  174,  it  was  held 
that  a  condition  on  ;i  grant  in  fee  not  to  sell  without  offer- 
ing to  the  grantor  was  good,  and  this  has  been  approved 
in  Overbagh  v.  Patrie,  8  Barb.  28,  34,  and  l)e  Peyster  v. 
Michael,  0  N.  Y.  407,  491  ;  but  perhaps  the  desire  not 
utterly  to  demolish  Jackson  v.  Schutz  may  have  prompted 
the  approval.  Such  a  condition,  if  good,  would  greatly 
clog  the  conveyance  of  land.  The  question  deserves  care- 
ful reconsideration.  [See  Be  Busker,  20  Ch.  D.  801,  §  51, 
post.  In  Hardy  v.  Galloway,  111  N.  C.  519,  the  grantor 
of  land  retained  for  himself  and  his  heirs  the  right  to 
repurchase  the  land  when  sold,  and  stipulated  that,  if  the 
grantee  should  sell  or  mortgage  the  land  without  giving 
the  grantor  and  his  heirs  the  right  to  repurchase,  the  deed 
should  be  void.  The  condition  was  held  bad  as  repug- 
nant. On  the  validity  of  a  bond  conditioned  not  to  alien- 
ate a  fee  simple,  see  §§  19,  ante,  77,  post.] 

§  2/.  A  condition  or  conditional  limitation  on  alienation 
attached  to  a  transfer  of  the  entire  interest  in  personalty 
is  as  void  as  if  attached  to  a  fee  simple  in  land.  Co.  Lit., 
223  a.'  Bradley  v.  Peixoto,  3  Ves.  Jr.  324.  Hi  sit  ton  v. 
Cobb,  5  Myl.  &  Cr.  145.  Be  Jones  s  Will,  23  L.  T.  N.  S. 
211.  [Re  Dugdale,  38  Ch.  D.  170.  Metcalfe  v.  Met- 
calfe, 43  Ch.  D.  033.  Corbett  v.  Corbett,  13  P.  D.  130; 
14  P.  Div.  7-  Barker  v.  Davis,  12  U.  C.  C.  P.  344.] 
This  is  as  true  of  [reversionary  interests  as  of  interests  in 
possession,  Powell  v.  Boggls,  35  Beav.  535,  and  of]  chattels 
real  as  of  chattels  personal.  Therefore,  although,  as  we 
shall  see,  (§§  101,  102,  post,)  on  a  lease  for  years  the 
lessor  can  impose  a  condition  against  alienation  upon  the 
lessee,  the  lessee  on  making  an  assignment  cannot  im- 
pose such  a  condition  upon  his  assignee,  for  the  lessee  is 


FORFEITURE   FOR   ALIENATION.  19 

transferring  his  whole  interest,  while  the  lessor  is  not. 
Co.  Lit.  223  a.  Such  a  condition  upon  an  assignment 
of  a  lease  seems  to  have  been  held  good  in  Doe  v.  Hawke, 
2  East,  481,  without  any  objection  occurring  to  either 
court  or  counsel.  The  only  point  discussed  was  whether 
the  condition  was  broken  :  its  validity  was  assumed.  But, 
it  is  submitted,  this  decision  cannot  be  supported.  [See 
Pottery.  Couch,  141  U.  S.  29G,  31 7-]  Chattels  real  and 
chattels  personal  stand  alike,  and  Lord  Coke  expressly 
says  that  conditions  against  alienation  are  void  with  one 
equally  as  with  the  other. 

§  28.  In  Williams  v.  Ash,  1  How.  1,  male  and  female 
slaves  were  bequeathed  to  A.,  provided  he  should  not 
sell  them,  in  which  case  they  should  be  free.  A.  sold  a 
male  slave.  Held,  that  he  was  free.  Taney,  C.  J.,  in 
giving  the  judgment  of  the  court,  said :  "  If,  instead  of 
giving  freedom  to  the  slave,  he  had  been  bequeathed  to 
some  third  person,  in  the  event  of  his  being  sold,  ...  it 
is  evident,  upon  common  law  principles,  that  the  limita- 
tion over  would  have  been  good.  2  East,  481."  The 
case  cited  is  Doe  v.  Haivke,  where,  as  is  stated  in  the 
preceding  section,  the  court  seem  to  have  overlooked 
the  distinction  between  a  condition  against  alienation 
attached  to  an  estate  for  years  in  its  creation,  which  is 
good,  and  such  a  condition  attached  to  the  transfer  of  an 
estate  for  years  when  created,  which  is  bad.  In  Steuart 
v.  Williams,  3  Md.  425,  Williams  v.  Ash  is  said  to  have 
established  the  law  in  Maryland.  The  prohibition  against 
selling  was,  it  would  seem,  confined  to  the  life  of  the 
devisee  ;  it  was  certainly  confined  to  the  life  of  the  male 
slave.  As  to  whether  it  could  be  sustained  as  confined 
to  a  limited  time,  see  §§  45  et  seq.,  post ;  but  unless  on 


20  RESTRAINTS  ON   ALIENATION. 

such  ground,  the  decision,  it  is  submitted,  can  be  sup- 
ported only  as  made  in  favorem  libertatis.  [See  Peggy 
v.  Legg,6  Munf.  229  ;  Smith  v.  Dunwoody,  19  Ga.  237, 

260.  In  /V/tr  v.  CW7<,  141  U.  S.  296,  316,  .'517,  the 
Supreme  Court  of  the  United  States  said  that  the  decision 
in  Williams  v.  Ash  "  turned  upon  the  local  law,"  and 
that  the  dictum  of  Chief  Justice  Taney,  cited  above,  "  if 
applied  to  a  conditional  limitation  to  take  effect  on  any 
and  all  alienation,  and  attached  to  a  bequest  of  the  entire 
interest,  legal  or  equitable,  even  in  personalty,  is  clearly 
contrary  to  the  authorities."] 

§  29.  It  was  held,  in  French  v.  Old  South  Society,  106 
Mass.  4/9,  that  a  pew  in  a  church  in  Boston,  where  pews 
are  personalty,  was  a  peculiar  species  of  property,  and 
might  be  laid  under  restrictions  against  alienation.  See 
§  42,  note,  post.  [And  in  Pearson  v.  Hartman,  100  Pa.  H4, 
in  the  deed  of  land  for  a  churchyard,  a  right  reserved  to 
the  grantor  and  every  member  of  his  family  or  their  off- 
spring to  mark  off  one  square  perch  of  ground  "  for  their 
own  and  separate  use  forever  for  the  burial  of  their  dead," 
was  held  not  assignable.] 

§  29  a.  [In  Camp  v.  Chary,  76  Va.  140,  A.  executed  a 
deed  by  which  he  conveyed  two  pieces  of  land,  X.  and  Y., 
to  B.  in  fee,  and  by  which  he  also  conveyed  to  B.  for  life 
another  piece  of  land,  Z.,  on  which  a  mausoleum  had  been 
built.  The  deed  recited  the  grantor's  wish  that  the 
mausoleum  should  be  forever  consecrated  to  the  pious 
use  for  which  it  had  been  designed,  and  continued  thus : 
"  I  do  solemnly  enjoin  and  restrict  [B.]  from  ever  selling, 
alienating,  leasing,  mortgaging,  or  disposing  of  the  same  in 
any  manner  whatsoever ;  and  I  do  hereby  give  and  grant 
to  him  the  said  land  and  mausoleum,  upon  the  condition 


FORFEITURE   FOR   ALIENATION.  21 

that  if  lie  shall  ever  sell,  give,  lease,  mortgage,  or  in  any 
way  whatsoever  alienate   or  dispose  of  the  said  land,  or 
any   part  thereof,  this  deed   shall  eease  and  be  void,  and 
the  said  last-mentioned  piece  of  land,  with  the  other  two 
lots  eonveyed  to  him  in  fee,  shall  revert  to  and  vest  in  [E.] 
and  her  heirs."  B.  sold  part  of  lot  Z.    The  Court  of  Appeals 
of  Virginia  held  that  E.  was  entitled  to  all  the  lots,  X.,  Y., 
and  Z.      The  court,  while  not  denying  that  a  condition 
against  alienation  attached  to  a  fee  simple  was  void,  was 
of  opinion  that  a  conditional  limitation  over  upon  aliena- 
tion was  good.     But  in  a  question  depending  upon  public 
policy,  the  technical  form  of  putting  an  end  to  a  fee  simple 
upon  alienation  must  be  immaterial.     No  such  distinction 
is  recognized  in  the  decisions.     The   following  were  all 
cases  of  conditional  limitations,  that  is,  of  gifts  over,  upon 
alienation,  and  not  of  conditions.      Ware  v.  Cann,  10  B. 
&  C.  433.     Willis  v.  Hiscox,  4  Myl.  &  Cr.  197,  201,  202. 
Re  DugdaJe,  38  Ch.  D.  176.     Corbett  v.  Corbett,  13  P.  D. 
136  ;  14  P.  Div.  7-     Metcalfe  v.  Metcalfe,  43  Ch.  D.  633. 
Potter  v.  Couch,  141  U.  S.  296.    In  Be  Dugdale,  Kay,  J., 
said :    "  It   is   clearly  settled   that   a   gift  over   upon   an 
attempt  to  alien  an  absolute  interest  previously  given  is 
as  void  as  a  condition.  ...  A  limitation  to  A.  '  and  his 
heirs,'  but  if  he  attempt  to  alien,  to  B.  in   fee,   is  an 
invalid  gift  over.     So  also  where  the  limitation  is  to  A. 
'and  his  heirs'  until  he  attempt  to  alien,  and  thereupon  to 
B.  and  his  heirs.     This  is  as  clearly  a  conditional  limita- 
tion as  the  other,  because  a  fee  simple  endures  forever, 
and  any  attempt  to  cut  it  down  must  be  a  defeasance." 
38  Ch.  D.  180,  181.     In  Metcalfe  v.  Metcalfe,  Kekewieh, 
J.,  said :    "  You  cannot  limit  an  estate  to  a  man  and  his 
heirs  until  he  shall  convey  the  land  to  a  stranger,  because 


22  RESTRAINTS   ON   ALIENATION. 

it  is  of  the  essence  of  an  estate  in  fee  that  it  confers  free 
power  of  alienation,  and  it  has  long  been  settled  that 
the  same  principle  is  applicable  to  gifts  of  personalty.  In 
favor  of  the  will,  which  must  be  read  and  construed  as  a 
whole,  yon  can  allow  such  a  proviso  to  defeat  any  partic- 
ular estate,  not  as  operating  to  take  away  that  which  has 
already  been  given,  but  as  restricting  the  quantity  of  the 
original  gift ;  but  an  estate  in  fee,  or  its  equivalent,  an 
absolute  gift  of  personalty,  docs  not  admit  of  such  treat- 
ment." 43  Cli.  D.  639.  So  in  Potter  v.  Couch,  Gray,  J., 
said:  "  In  a  devise  of  land  in  fee  simple,  therefore,  a  con- 
dition against  all  alienation  is  void,  because  repugnant  to 
the  estate  devised.  .  .  .  For  the  same  reason  a  limitation 
over,  in  case  the  first  devisee  shall  alien,  is  equally  void, 
whether  the  estate  be  legal  or  equitable."  141  U.  S.  315. 
The  Virginia  court  refers  to  Roc/iford  v.  Hackman^  9 
Hare,  4J~),  but  Turner,  V.  C,  in  that  case  was  scrupu- 
lously careful  to  confine  his  remarks  to  life  estates.  See 
§  49,  post] 

§  29  b.  [There  is  a  passage  of  Lord  Coke  which  might 
plausibly  have  been  invoked  to  sustain  the  decision  in 
Camp  v.  Chary :  "  If  A.  be  seised  of  Black  Acre  in  fee, 
and  B.  enfeoffeth  him  of  White  Acre,  upon  condition  that 
A.  shall  not  alien  Black  Acre,  the  condition  is  good,  for 
the  condition  is  annexed  to  other  land,  and  oustcth  not 
the  feoffee  of  his  power  to  alien  the  land  whereof  the 
feoffment  is  made,  and  so  no  repugnancy  to  the  state 
passed  by  the  feoffment."  Co.  Lit.  223  a.  No  authority 
is  cited  for  this,  and  if  it  now  is  or  ever  was  law,  which 
may  reasonably  be  doubted,  it  would  probably  not  apply 
where  White  Acre  and  Black  Acre,  as  in  Camp  v.  Chary, 
passed  by  one  deed.] 


FORFEITURE  FOR  ALIENATION".  23 

§  29  c.  [Obligations  or  rights  in  personam,  arising  from 
either  tort  or  contract,  arc  generally  not  assignable  in 
law,  and  sometimes  not  in  equity.  Sec  §§  1,  2,  ante. 
There  arc  certain  contracts  not  of  themselves  assignable 
at  law,  which  yet  the  law  allows  the  obligor  to  make 
assignable.  Thus  a  written  promise  to  pay  a  certain 
sum  of  money  on  a  day  fixed  to  A.  is  not  assignable,  but 
if  the  promisor  makes  the  sum  payable  to  A.  or  his  order, 
or  to  A.  or  bearer,  then  A.  can  assign  it.  But  the  only 
instance  where  common  law  or  equity  allows  a  transfer  of 
a  right  in  personam  without  a  special  agreement,  and  yet 
enforces  an  agreement  restraining  transfer,  is  believed 
to  be  in  the  case  of  policies  of  insurance.  With  marine 
and  fire  insurance,  where  the  agreement  is  to  insure  A. 
on  certain  property,  the  contract  naturally  comes  to  an 
end  when  A.  ceases  to  own  the  property,  but  if  A.  should 
keep  the  property  and  assign  the  policy,  although  the  as- 
signee can,  in  the  absence  of  agreement,  recover  in  equity 
on  the  policy,  yet  a  stipulation  that  A.  cannot  assign  will 
be  respected.  There  is  good  reason  for  this,  for  the  con- 
tract is  essentially  one  of  indemnity,  and  it  is  not  desirable 
that  a  man  should  gain  by  the  destruction  of  property 
who  has  no  interest  in  its  preservation.  In  life  insurance 
there  is  also  good  reason  for  allowing  the  assignment  of 
policies  to  persons  not  interested  in  the  life  to  be  re- 
strained, and  indeed,  in  many  jurisdictions,  such  an  assign- 
ment is  forbidden  by  law.  As  the  contract  of  life  insurance 
is  not  a  contract  of  indemnity,  it  may  be  that  a  restraint 
on  assignment  to  a  person  interested  would  not  be  al- 
lowed. But  no  case  is  known  where  the  validity  of  such 
a  restraint  has  been  called  in  question.  And  the  nature 
and  amount  of  the  interest  of  the  person  to  be  benefited 


24  RESTRAINTS   OX   ALIENATION. 

under  a  policy  may  be  a  serious  matter  to  an  insurance 
company,  and  one  on  which  it  would  seem  just  to  allow  it 
a  voice  Probably,  therefore,  a  restriction  on  the  assign- 
ment of  a  policy  of  life  insurance,  even  though  to  a  person 
interested  in  the  life,  would  be  upheld.] 

^  29  d.  [The  interest  of  a  partner  in  a  partnership,  or  of 
a  shareholder  in  an  unincorporated  or  incorporated  com- 
pany, may  also  be  made  non-assignable.  In  the  absence 
of  agreement  the  right  of  a  partner  is  generally  presumed 
to  be  non-assignable,  and  of  a  shareholder  to  be  assign- 
able ;  but  this  may  in  both  cases  be  changed  by  the  terms 
of  the  articles  or  by-laws.  The  law  docs  not  force  fellow- 
ship on  any  one  without  his  consent.] 

§  30.  A  covenant  to  hold  lands  in  common,  or  a  con- 
dition that  they  shall  not  be  subject  to  partition,  has  been 
held  a  bar  to  a  petition  for  partition.  Hunt  v.  Wright, 
47  X.  II.  396.  ('<>/r, n<nt  v.  Coleman,  19  Pa.  100.  Avery 
v.  Payne,  12  Mich.  540.  So  a  direction  in  a  devise  to 
two  women,  that  the  land  devised  should  be  kept  to- 
gether until  one  of  them  married.  Hill  v.  Jones,  65 
Ala.  214.  See  Peck  v.  Cardwell,  2  Beav.  13/.  In  Hunt 
v.  ~\Yri<//tl  it  was  said  that  such  a  Condition  does  not 
render  the  undivided  shares  inalienable,  and  that  it  could 
not  be  repugnant  to  the  estate,  because  at  common  law 
tenants  in  common  could  not  be  compelled  to  make  par- 
tition (Lit.  §  318),  the  right  to  compel  partition  being 
first  given  to  them  by  St.  31  Hen.  VIII.  c.  1.  In 
Mitchell  v.  Starbuck,  10  Mass.  5,  11,  12,  it  was  ruled 
that  a  plea  of  a  prescription  not  to  part  was  bad,  such 
prescription  being  against  the  law,  inasmuch  as  it  was 
"  essential  to  an  estate  in  common  to  be  subject  to  par- 
tition"; and  in  Black  v.  Tyler,  1  Pick.  150,  it  was  ruled 


FORFEITURE   FOR   ALIENATION.  25 

that  -an  agreement  to  hold  in  common,  not  under  seal, 
was  no  bar  to  a  petition  for  partition,  though  perhaps 
there  might  be  a  remedy  in  equity.  See  [McDonogh  v. 
Murdoch,  15  How.  367,  412;]  Fisher  v.  Dewerson,  3 
Met.  544;  Spaulding  v.  Woodward,  53  K  H.  573; 
Richardson  v.  Merrill,  21  Me.  47;  Smith  v.  Clark,  10 
Md.  186;  [Lovett  v.  Kingsland,  44  Barb.  560;  s.  c.  sub 
nom.  Lovett  v.  Gillender,  35  N.  Y.  617  ;  Greene  v.  Greene, 
54  Hun,  93 ;  s.  c.  125  N.  Y.  506 ;  Pardue  v.  Givens,  1 
Jones,  Eq.  306;]  and  §  64,  post.  Whatever  the  true 
doctrine  may  be,  a  prohibition  against  partition  is  not 
a  restraint  on  alienation,  as  the  undivided  share  is 
always  assignable,  and  therefore  it  is  only  spoken  of  here 
incidentally. 

2.  Restraints  on  Alienation  qualified  as  to  Persons. 

§  31.  In  8  Hen.  VII.  10,  pi.  3,  Huse,  C.  J.,  and  Fair- 
fax, J.,  said  that  a  condition  not  to  alien  to  a  particular 
person  was  good.  Littleton,  §  361,  says,  "If  the  con- 
dition be  such  that  the  feoffee  shall  not  alien  to  such  a 
one,  naming  his  name,  or  to  any  of  his  heirs,  or  of  the 
issues  of  such  a  one,  etc.,  or  the  like,  which  conditions  do 
not  take  away  all  power  of  alienation  from  the  feoffee, 
etc.,  then  such  condition  is  good."  See  [Bract.,  lib.  2, 
c.  5,  fol.  13,  §  16,  ante-,  Madox,  Form.  Angl.,  196,  197; 
Co.  Lit.  223;]  Doct.  &  Stud.,  Dial.  II.  c.  35;  Shep. 
Touch.  129.  [In  Bragge  v.  Stunner,  Palm.  172;  s.  c. 
sub  nom.  Bragg  v.  Taund,  New  Benl.  89  (1621),  there  is 
a  dictum  of  Houghton,  J.,  that  a  feoffment  that  the 
feoffee  should  not  alien  to  A.  is  good.] 

§  32.  In  1561,  according  to  a  short  note,  Anon., 
Dalison,  58,  pi.  5,  there  was  a  devise   of  land   to   the 


26  RESTRAINTS   ON   ALIENATION. 

testator's  widow  "to  dispose  and  employ  it  on  herself 
and  on  her  son  at  her  will  and  pleasure,"  and  it  was 
held  in  the  Common  Pleas,  by  Dyer,  C.  J.,  and  Weston 
&  Walsh,  JJ.,  that  she  took  a  fee,  and  not  a  life  estate  ; 
and  Dyer,  C.  J.,  and  Walsh,  J.,  held  that  it  was  a  fee  on 
condition,  "  so  that  she  could  not  grant  the  land  to  a 
stranger,  but  she  must  hold  it  or  give  it  over  to  one  of 
her  sons.''  Whether  the  point  was  material,  or  the  valid- 
ity of  the  devise  questioned,  docs  not  appear. 

§  33.  In  Daniel  v.  Uphj,  Latch,  9,  39,  134 ;  s.  c.  sub 
nom.  Daniel  v.  Ubleij,  Win.  Jones,  137,  there  was  a  de- 
vise of  a  house  to  the  testator's  widow,  "  to  dispose  at 
her  will  and  pleasure,  and  to  give  it  to  any  of  my  sons 
which  she  pleases."  She  conveyed  it  to  X.,  one  of  the 
testator's  sons.  It  was  held  by  the  Court  of  King's  Bench 
that  X.  had  a  good  title.  Two  of  the  judges  thought 
that  the  widow  took  a  life  estate  with  power  of  convey- 
ing in  fee,  and  the  other  two  thought  that  she  took  a  fee 
simple  on  condition  that  she  should  not  alien  except  to 
the  sons.  As  the  condition  was  not  broken,  (even  if  we 
agree  with  the  latter  two  judges  that  there  was  a  condi- 
tion,) there  was  no  occasion  to  question  its  validity ;  and 
nothing  is  said  about  it. 

§  34.  Serjeant  Bridgman,  in  his  argument  in  Muschamp 
v.  HI  net,  J.  Bridg.  132,  137,  contends  that  a  condition 
upon  a  devise  to  the  testator's  younger  sons,  that  they 
shall  not  alien  except  to  their  elder  brother,  is  void.1 

§  35.  The  question  does  not  seem  to  have  come  up  for 
decision  until  Doe  d.  GUI  v.  Pearson,  6  East,  173  (1  {!(>.">). 
In  that  case  there  was  a  devise  to  two  of  the  testator's 

1  This  is  not  the  decision  of  the  court,  as  stated  in  2  Jarm.  Wills  (5th 
ed.)»  859  ;  but  only  the  contention  of  the  learned  Serjeant. 


FORFEITURE   FOR   ALIENATION".  27 

daughters,  Ann  and  Hannah,  to  hold  to  them,  their  heirs 
and  assigns,  as  tenants  in  common,  "  upon  this  specific 
proviso  and  condition,  that  in  case  my  said  daughters,  or 
either  of  them,  shall  have  no  lawful  issue,  that  then  and 
in  such  case  they  or  she  having  no  lawful  issue  as  afore- 
said shall  have  no  power  to  dispose  of  her  share  in  the 
said  estates  so  above  given  to  them,  except  to  her  sister 
or  sisters,  or  to  their  children."  Ann  levied  a  fine  of  her 
share.  Held,  that  the  testator's  heirs  could  enter  for 
breach  of  the  condition.  Lord  Ellenborough,  in  giving 
judgment,  relied  on  the  note  in  Dalison,  58,  and  on 
Daniel  v.  Uply,  ubi  supra.     [Cf.  §§  56  c,  56  d,  post.~] 

§  36.  In  Attwater  v.  Attwater,  18  Beav.  330,  there 
was  a  devise  of  land  to  the  testator's  nephew,  "  with  an 
injunction  never  to  sell  it  out  of  the  family;  but,  if  sold 
at  all,  it  must  be  to  one  of  his  brothers  hereafter  named," 
of  whom  there  were  five.  Lord  Romilly,  M.  R,  declined 
to  follow  Doe  v.  Pearson,  and  held  that  the  clause  was 
simply  inoperative. 

§  37.  In  Billing  v.  Welch,  I.  R.  6  C.  L.  88,  a  covenant 
by  the  grantee  of  land  that  he,  his  heirs  and  assigns,  would 
not  alien,  sell,  or  assign  to  any  one  except  his  or  their 
child  or  children,  without  the  license  of  the  grantor,  and 
reserving  a  penal  rent  for  its  breach,  was  held  repugnant 
to  a  fee  simple,  Attwater  v:  Attwater  being  approved. 

§  38.  In  Ludlow  v.  Bunbury,  35  Beav.  36,  property 
real  and  personal,  in  the  hands  of  trustees,  was  appointed 
to  A.  and  his  heirs,  but  upon  condition  that  in  case  B.  or 
his  wife,  or  any  descendant  of  either  of  them,  should,  by 
any  conveyance  executed  by  A.,  become  interested  in  the 
property,  then  the  interest  of  A.  should  cease.  The  trus- 
tees filed  a  bill  for  instructions  whether  they  could  safely 


28  RESTRAINTS  ON    ALIENATION. 

convoy  to  A.  The  .Master  of  the  Rolls  (Sir  John  Roniilly) 
ordered  a  conveyance,  holding  that  the  condition  was  void. 
There  is  no  opinion,  and  there  was  no  opposition. 

§  39.  In  re  Macleay,  L.  R.  20  Eq.  180.  Here  a  devise 
of  land  to  the  testators  brother,  "on  the  condition  that 
he  never  sells  it  out  of  the  family,"  was  held  by  Sir 
George  Jessel,  M.  R.,  in  an  elaborate  opinion,  to  be  valid.1 
[See  Martin  v.  Martin,  19  Ir.  L.  R.  72,  80.  But  in  Re 
Roslur,  26  Ch.  D.  801,  810,  Pearson,  J.,  doubted  the 
correctness  of  the  decision  of  In  re  Macleay.  See  Re 
Dugdale,  38  Ch.  D.  170,  179.] 

£  40.  In  America  it  has  been  often  said  that  a  condi- 
tion not  to  alien  to  particular  persons  is  good.  Coivell  v. 
Springs  Co.,  100  U.  S.  55,  57.  Jackson  v.  Schutz,  18 
Johns.  174,  184.  Gray  v.  Blanchard,  8  Pick.  284,  289. 
[Winsor  v.  Mills,  157  Mass.  302,  304.  McWilliams  v. 
Nisly,  2  S.  &  R.  507,  513.]  Jauretche  v.  Proctor,  48  Pa. 
400,  472.  [But  Chancellor  Kent  said :  "  If,  however,  a 
restraint  upon  alienation  be  confined  to  an  individual 
named  to  whom  the  grant  is  not  to  be  made,  it  is  said 
by  very  high  authority  (Lit.  §  301,  Co.  Lit.  223)  to  be  a 
valid  condition.  But  this  case  falls  within  the  general 
principle,  and  it  may  be  very  questionable  whether  such 
a  condition  would  be  good  at  this  day."  4  Kent,  Com. 
131.  See  Oxley  v.  Lane,  35  N.  Y.  340,  347 ;  Murray  v. 
Green,  64  Cal.  303,  367,  368.  In  Schermerhom  v.  Negus, 
1  Demo,  448,  a  provision  in  a  devise  to  children  and 
grandchildren  that  no  part  of  the  laud  devised  should  be 
alienated  by  any  of  the  children  or  their  descendants, 
except  to  each  other  or  their  descendants,  under  penalty 
of  forfeiture,  was  held  bad.]      In  Anderson  v.  Cary,  36 

1  [It  should  be  observed,  that  there  was  no  argument  of  opposing 
counsel.] 


FORFEITURE  FOR  ALIEXATIOX.  29 

Ohio  St.  506,  and  Gallinger  v.  Farlinger,  6  U.  C.  C.  P. 
512,  prohibitions  to  alien  except  to  the  devisee's  brother  or 
brothers  were  held  invalid  ;  but  it  seems  to  have  been  the 
opinion  of  the  Court  in  Pennyman  v.McGrogan,  18  U.  C. 
C.  P.  132,  that  such  a  condition  was  good.  And  see 
Smith  v.  Faught,  45  U.  C.  Q.  B.  484,  488.  In  McCul- 
lough  v.  d'i/niore,  11  Pa.  3/0,  a  prohibition  not  to  leave 
devised  land  to  any  but  the  heirs  of  the  devisee's  father's 
family  was  held  void  for  uncertainty ;  and  the  court  said 
that  a  condition  not  to  devise  except  to  the  grantee's  heirs 
would  be  bad.  [And  see  Hartman  v.  Herbine,  7  Pa.  C.  C. 
630.]  In  Barnard  v.  Bailey,  2  Harrington  (Del.),  56, 
it  was  declared  that  a  condition  in  a  devise  that  the 
devisee  should  not  dispose  of  the  property  by  will  to  the 
blood  kin  of  either  the  testator  or  the  devisee  was  bad. 
[In  Williams  v.  Jones,  2  Swan,  620,  there  was  a  bequest 
to  A.  on  condition  that  she  should  not  dispose  of  it  so 
as  to  allow  either  of  four  persons  to  get  it.  It  was  held 
that  the  condition  was  void.]  In  Brothers  v.  McCurdy, 
36  Pa.  407,  a  testator  directed  that  land  devised  to  J. 
should  not  be  sold  by  him  for  the  purpose  of  making 
brick,  and  especially  that  he  should  not  sell  it  to  L.,  and 
that  if  J.  should  offer  to  sell  it  contrary  to  the  will,  it 
should  go  over.  L.  was  during  the  lifetime  of  the  tes- 
tator the  only  brickmaker  in  the  town.  J.  offered  the 
land  to  L.,  and,  on  his  refusal,  sold  and  conveyed  it  to  F. 
by  a  deed  which  recited  that  it  was  subject  to  certain 
restrictions  mentioned  in  the  testator's  will.  F.  used  the 
land  for  making  brick.  Held,  that  the  gift  over  was 
void  for  uncertainty.  See  also  Williams  v.  Robinson,  16 
Conn.  517;  McKinster  v.  Smith,  27  Conn.  628;  [Den  d. 
Blackwell  v.  Blackwell,  3  Green,  386,  389,  392 ;]  Den  d. 


30  RESTRAINTS  ON   ALIENATION. 

Trumbull  v.  Gibbons.  2  Zabr.  117,  154,  155;  {Jamison  v. 
Craven,  1  Del.  Ch.  311,  326.  Cf.  Matter  of  Hohman,  37 
Hun,  250;  Fisher  v.  Mster,  154  Pa.  65;]  Bergin  v. 
Sisters  of  St.  Joseph,  22  U.  C.  Q.  B.  204;  [O'Sullivan  v. 
Phelan,  17  Out.  730.     See  §  56  f,  post.'] 

§41.  The  authorities,  it  will  be  seen,  are  in  hopeless 
conflict.  The  rule  which  naturally  suggests  itself  is  that 
a  condition  is  good  if  it  allows  of  alienation  to  all  the 
world  with  the  exception  of  selected  individuals  or  classes; 
but  is  bad  if  it  allows  of  alienation  only  to  selected  indi- 
viduals or  classes.  [Williams  on  Settlements,  134,  135.] 
Perhaps  this  rule  might  be  difficult  of  application,  or 
easily  evaded.  At  any  rate  the  leading  case  of  Doe  v. 
Pearson  and  the  late  case  of  In  re  Macleay  cannot  be 
brought  within  it,  for  they  both  allow  the  power  of  alien- 
ation to  be  restrained  within  the  narrowest  limits;  and 
Sir  George  Jessel  says,  "  The  test  is  whether  the  condi- 
tion takes  away  the  whole  power  of  alienation  substan- 
tially."    L.  R.   20  Eq.   189. 

§  42.  In  England  the  evil  from  such  provisions  is 
greatly  mitigated  by  applying  to  them  the  Rule  against 
Perpetuities,  to  which  conditions  as  well  as  conditional 
limitations  arc  subject.  In  In  re  Macleay,  the  provision 
against  alienation  was  a  condition,  and  Jessel,  M.  R.,  said, 
"  Of  course,  if  unlimited  as  to  time,  it  would  be  void  for 
remoteness."  L.  R.  20  Eq.  180,  187,  188,  190.  In 
America  this  mitigation  is  to  a  great  extent  impossible, 
for  such  provisions  are  generally  in  the  form  of  condi- 
tions, and  conditions  have  been  regarded  in  this  country 
as  not  subject  to  the  Rule  against  Perpetuities.1 

1  There  is  no  reason  in  the  history  of  the  law,  or  in  its  principles,  why 
the  Rule  against  Perpetuities  should  not  be  applied  to  conditions.      The 


FORFEITURE  FOR   ALIENATION.  31 

§  43.  Assuming  that  such  conditions  are  to  be  sustained 
to  some  extent,  and  laying  aside  the  Rule  against  Perpetu- 
ities, there  are  then  two  tests:  —  (1.)  The  one  suggested 
in  §  41,  ante,  that  a  condition  against  alienation  is  bad,  if 
alienation  is  restricted  to  particular  individuals  or  a  par- 
ticular class.  (2.)  That  a  condition  is  bad  only  when  all 
alienation  is  substantially  restricted.  The  latter  test  is 
supported  by  the  weighty  authority  of  Lord  EHenborough 
and  the  judges  of  the  King's  Bench,  as  well  as  of  Sir 

reason  sometimes  given  for  applying  it  to  an  executory  devise  and  not  to 
a  condition,  that  the  former  cannot  be  released,  while  the  latter  can  be,  is 
unsound,  for  an  executory  devise  to  A.  and  his  heirs  may  always  be  re- 
leased by  A.,  and  yet  is  unquestionably  within  the  rule. 

The  practical  inconvenience  of  not  applying  the  rule  to  conditions  is 
great,  especially  in  America,  where  all  a  man's  children  are  his  heirs,  and 
where,  in  a  generation  after  his  death,  his  heirs  may  be  half  a  hundred  or 
more  in  number,  and  scattered  all  over  the  continent. 

Since  the  establishment  of  the  rule,  there  has  been,  it  is  believed,  not 
one  case  in  England  where  a  condition  exposing  to  a  forfeiture  has  been 
sustained  when  it  violated  the  rule.  And  there  is  the  statement  of  Jessel, 
M.  R.,  quoted  in  the  text,  that  "of  course"  a  condition  might  be  bad  for 
remoteness.     [And  see  Dunn  v.  Flood,  25  Ch.  D.  629.] 

There  is  but  one  case  in  America  where  the  court  has  considered  the 
objection  of  remoteness  to  a  condition  and  has  rejected  it,  and  that  was 
in  the  case  of  the  right  to  a  pew,  which  was  held  inalienable,  and  to  which, 
therefore,  as  in  the  case  of  charities,  the  rule  does  not  apply.  French  v. 
Old  South  Society,  106  Mass.  479.  See  §  29,  ante.  [See  now,  however,  First 
Univ.  Soc.  v.  Boland,  155  Mass.  171,  175,  176.] 

But,  notwithstanding  all  this,  there  have  been  many  cases  in  America 
where  conditions  obnoxious  to  the  Rule  against  Perpetuities  have  been  sus- 
tained ;  and  though  they  have  been  upheld  without  apparently  the  objec- 
tion of  remoteness  occurring  to  either  court  or  counsel,  they  now  form  a 
body  of  precedents  which  it  would  take  some  courage  to  overthrow.  And 
in  very  many  other  cases  where  it  has  been  held  that  there  was  no  forfeit- 
ure, either  because  there  had  been  no  breach  or  no  entry,  or  because  the 
right  had  been  waived,  released,  or  destroyed,  the  validity  of  conditions 
beyond  the  period  allowed  by  the  Rule  against  Perpetuities  has  been  de- 
clared or  assumed  as  unquestioned,  without  any  objection  on  the  ground 
of  remoteness.     [See  Gray,  Pule  against  Perpetuities,  §§  299-311.] 


32  RESTRAINTS  ON  ALIENATION. 

George  Jessel.  But  in  favor  of  the  former  it  may  be 
observed:  (1.)  Doe  v.  Pearson  was  not  decided  till  1805, 
and  there  was  nothing  in  the  earlier  authorities  which 
required  it  to  be  decided  as  it  was ;  for  from  the  loose 
note  in  Dalisou  it  does  not  appear  whether  there  was  any 
breach  of  condition,  and  in  Daniel  v.  Uply  there  was  no 
breach,  and  half  the  judges  thought  there  was  no  condi- 
tion. (-2.)  In  re  Macleay  is  based  largely  on  Doe  v.  Pear- 
son, [and  has  been  doubted  in  Be  Bosher,  20  Ch.  1).  801, 
816.]  (3.)  The  decision  of  Lord  Romilly  in  Attwater  v. 
Attwater  was  approved  and  followed  by  the  Court  of 
Queen's  Bench  in  Ireland  in  Billing  v.  Welch.  (4.)  The 
decisions  in  America,  if  not  all  the  dicta,  disagree  with 
Doe  v.  Pearson.  [See  Schermerhorn  v.  Negus,  1  Denio, 
448;]  Anderson  v.  Cary,  36  Ohio  St.  506;  [Williams  v. 
Jones,  2  Swan,  620 ;]  Gallinger  v.  Farlinger,  6  U.  C.  C. 
P.  512.  (5.)  The  freedom  of  conditions  in  America  from 
the  control  of  the  Rule  against  Perpetuities  makes  it  the 
more  necessary  to  adopt  the  stricter  rule,  as  otherwise 
the  alienation  of  property  may  be  greatly  clogged  for  an 
indefinite  time. 

§  44.  In  Ludlow  v.  Banbury,  35  Beav.  36,  (see  §  38, 
ante,)  Lord  Romilly  is  said  to  have  declared  that  a  con- 
dition against  alienation  by  a  devisee  to  B.  or  his  descend- 
ants was  void.  This  would  seem,  on  any  theory,  to  be 
going  too  far,  if  qualified  conditions  are  to  be  allowed  at 
all.  See  3  Davidson,  Prcc.  Conv.  (3d  cd.)  Ill,  note. 
[But  perhaps,  in  view  of  this  case,  of  Williams  v.  Jones, 
2  Swan,  620,  §  40,  ante,  and  of  the  language  of  Chancel- 
lor Kent,  cited  §  40,  ante,  the  wisest  way  wrouhl  be  to 
disallow  such  qualified  restrictions  altogether.  If  it  is 
only  the  immediate  grantee  who  is  forbidden  to  alienate 


FORFEITURE   FOR   ALIENATION.  33 

to  specified  persons,  he  can  perhaps  evade  the  condition 
by  conveying  through  a  third  person.]  See  Doct.  &  St., 
Dial.  II.  c.  35;  [Anon.,  Dyer,  45  a;]  and  also  Co.  Lit. 
223  b;  In  re  Macleay,  L.  R.  20  Eq.  1«C,  189.  [No  case 
has  yet  supported  such  a  condition  when  imposed  on  any 
one  beyond  the  first  grantee.  See  McKinster  v.  Smith, 
27  Conn.  628.] 

3.    Restraints  on  Alienation  qualified  as  to  Time. 

§  45.  An  attempt  may  be  made  to  impose  a  condition 
or  conditional  limitation  against  alienation  while  the  in- 
terest is  (1.)  contingent  or  (2.)  vested. 

§  46.  (1.)  A  condition  or  conditional  limitation  upon 
alienation  of  a  contingent  interest  before  it  vests,  is  good. 
This  was  first  held  in  Large  s  Case,  2  Leon.  82 ;  3  Leon. 
182.  There  was  in  that  case  a  devise  to  the  testator's 
widow,  until  his  son  William  should  reach  the  age  of 
twenty-two  years,  and  then  to  others  of  his  sons,  upon 
condition  that,  if  any  one  of  his  said  sons  before  William's 
reaching  twenty-two  should  sell  any  lands,  he  should 
forever  lose  the  same.  Under  this  devise  the  widow 
took  a  freehold,  for  William  might  die  before  he  reached 
twenty-two,  and  then  she  would  hold  for  her  life ;  and 
the  sons  took  remainders  supported  by  the  widow's  life 
estate,  but  contingent  upon  William's  reaching  twenty- 
two.  Before  William  reached  twenty-two,  one  of  the 
other  sons  sold  his  share.  It  was  held  that  he  had  for- 
feited his  estate.  To  the  same  effect  are  Churchill  v 
Marks,  1  Coll.  441  ;  Barnett  v.  Blake,  2  Dr.  &  Sm.  117; 
and  see  Graham  v.  Lee,  23  Beav.  388 ;  Re  Payne,  25 
Beav.  5oG  ;  Samuel  v.  Samuel,  12  Ch.  D.  152;  [Poivell  v. 
Boggis,  35  Beav.  535 ;  Bank  of  The  State  v.  Forney,  2 


34  RESTRAINTS  ON   ALIENATION. 

[red.  Eq.  181 ;  James  v.  Gard,  13  Vict.  L.  R.  908.]  As 
every  estate  must  vest  within  the  time  required  by  the 
Rule  against  Perpetuities,  no  such  condition  can  be  bad 
for  remoteness.  These  decisions  are  quite  in  accordance 
with  principle.  A  vested  estate  cannot  be  made  termi- 
nable by  an  illegal  condition.  But  if  a  testator  or  settlor 
declares  that  an  estate  shall  not  vest  if  a  certain  thing  is 
done,  the  estate  will  never  vest  if  the  thing  is  done.  If 
the  thing  is  not  done,  then  the  vesting  may  depend  upon 
whether  the  omission  to  do  the  thing  was  legal  or  illegal  ; 
but  if  it  is  done,  the  estate  will  not  vest  in  any  case.  [See 
Powell  v.  Boggis,  35  Beav.  535.] 

§  47.  (2.)  How  far  is  a  condition  or  conditional  limita- 
tion upon  alienation  limited  in  time  good,  when  attached 
to  a  vested  interest?  In  the  majority  of  those  cases  in 
which  a  condition  or  conditional  limitation  has  been  held 
bad,  the  condition,  if  broken  at  all,  must  have  been  broken 
in  the  lifetime  of  the  first  taker.1  Ware  v.  Cann,  10  B. 
&  C.  488.  BradUoj  v.  Peixoto,  8  Ves.  Jr.  824.  [Willis 
v.  Hiscox,  4  Myl.  &  Cr.  197,  201,  202.]  Rishton  v.  Cobb, 
5  Myl.  &  Cr.  145.  Be  Jones  s  Will,  28  L.  T.  N.  S. 
211.  [Re  Machu,  21  Ch.  D.  888.  Re  Dugdale,  38  Ch. 
I).  170.  Corbett  v.  Corbett,  13  P.  D.  136  ;  s.  c.  14  P.  Div. 
7.  Potter  v.  Couch,  141  U.  S.  296.  Walker  v.  Vincent, 
19  Pa.  309.  Barker  v.  Davis,  12  U.  C.  C.  P.  844. 
Lario  v.  Walker,  28  Grant,  216.  Re  Watson  and  Woods, 
1 1  ()nt.  48.]  In  Renaud  v.  Tourangeau,  L.  R.  2  P.  C.  4, 
18,  on  appeal  from  Lower  Canada,  a  restraint  upon  the 

1  In  Baker  v.  Nevtion,  2  Beav.  112,  a  devise  "to  A.  for  her  own  abso- 
lute use,  without  liberty  to  sell  or  assign  during  her  natural  life,"  was  held 
by  Lord  Laugdale,  M.  R.,  to  give  A.  a  fee,  and  not  a  life  estate,  but  the 
validity  of  the  restriction  does  not  seem  to  have  been  considered. 


FORFEITURE  FOR  ALIENATION.  35 

devisees  of  lands  from  alienating  them  for  a  period  of 
twenty  years  from  the  testator's  death  was  held  "  not 
valid,  either  by  the  old  law  of  France,  or  the  general 
principles  of  jurisprudence." 

§  48.  On  the  other  hand,  in  Kiallmark  v.  Kiallmark, 
26  L.  J.  Ch.  1,  property,  real  and  personal,  was  given  to 
trustees  to  pay  an  annuity  out  of  the  income  to  A.,  and 
the  balance  to  the  children  of  the  settlor,  and  on  the 
death  of  A.  to  sell  the  property  and  divide  the  proceeds 
among  said  children,  provided  that,  if  before  such  sale 
any  one  of  the  settlor's  sons  should  become  bankrupt,  his 
share  should  go  over.  One  of  the  sons,  after  the  death  of 
A.,  but  before  a  sale,  became  bankrupt.  Vice-Chancellor 
Kindersley  held  that  the  gift  over  took  effect.  The  ques- 
tion discussed  was  whether  the  clause  of  forfeiture  was  in- 
tended to  apply  to  a  bankruptcy  occurring  after  the  death 
of  A.,  though  before  the  sale.  It  was  assumed  by  court 
and  counsel  that  the  clause  was  good.  In  this  case  the 
property  had  not  been  sold,  but  the  children  had  a  vested 
right  in  it,  and  were  entitled  to  the  income  until  sale ; 
and  even  had  it  been  a  reversionary  estate,  yet,  if  vested 
in  interest,  there  would  seem  to  be  no  valid  distinction 
between  it  and  property  vested  in  possession.  The  clause 
against  forfeiture  in  both  cases  alike  is  a  condition  sub- 
sequent. See  3  Davidson,  Prec.  Conv.  (3d  ed.)  Ill,  note; 
Mandlehavm  v.  McDonell,  29  Mich.  78  ;  §  113,  iwst.  [In 
Powell  v.  Boggis,  35  Beav.  535,  provisions  forfeiting  vested 
reversionary  interests  upon  alienation  were  held  bad.] 

§  49.  In  Kearsley  v.  Woodcock,  3  Hare,  185,  £12,000 
were  bequeathed  to  trustees,  in  trust  out  of  the  interest 
to  pay  to  A.  and  B.  each  £150  annually,  and  during  the 
lives  of  A.  and  B.,  or  either,  to  pay  the  balance  of  inter- 


36  RESTRAINTS  ON   ALIENATION. 

est  to  ('.and  liis  executors,  administrators,  and  assigns; 
and  alter  the  death  of  both  A.  and  B.  to  stand  possessed 
of  £8,000,  part  of  the  £12,000,  and  the  interest  thereof, 
in  trust  for  C.  and  his  executors,  administrators,  and  as- 
signs, provided  that,  if  C.  during  the  lives  of  A.  and  B., 
or  either,  should  alienate  his  interest,  it  should  go  over. 
It  was  held,  or  rather  assumed,  (and  by  counsel  as  well 
as  the  court,)  that  the  condition  was  valid.  In  Churchill 
v.  Marks,  1  Coll.  441,  445,  the  reporter  says:  "In  the 
course  of  the  argument  an  eminent  conveyancer,  in  an- 
swer to  a  question  put  to  him  by  the  court,  stated  his 
opinion  to  be,  that  a  gift  to  A.  in  fee,  with  a  proviso  that, 
if  A.  alien  in  B.'s  lifetime,  the  estate  shall  shift  to  B.,  is 
valid."  In  Pearson  v.  Dolman,  L.  R.  3  Eq.  315,  the  in- 
come of  a  fund  was  given  to  A.  until  he  reached  twenty- 
five,  and  then  the  principal  was  given  to  him,  with  a 
clause  of  forfeiture  on  alienation  before  twenty-live.  A. 
died  before  twenty-five  without  having  alienated.  Vice- 
Chancellor  Wood  held  that  the  fund  passed  to  his  execu- 
tors, and  said  that  the  clause  of  forfeiture  was  good.  As 
A.  never  alienated,  this  latter  remark  was  obiter.  [The 
Vice-Chancellor  docs  not  allude  to  the  restraint  on  alien- 
ation being  limited  in  time.  His  words  are  :  "  Although 
you  cannot  make  a  grant  to  a  man  of  property,  and,  at 
the  same  time,  deprive  him  of  its  incidents  by  saying  that 
he  shall  not  alienate  it,  yet  a  gift  may  be  made  by  a  third 
person,  defeasible  in  the  event  of  an  attempt  to  alien" 
(p.  320);  and  he  cites  Rochford  v.  Hackman,  9  Hare,  475. 
Expressed  in  these  general  terms,  the  proposition  is,  of 
course,  unsound.  See  §§  13-29  b,  ante.  It  is  a  singular 
piece  of  undeserved  ill-luck  that  the  accurate  statement  of 
Turner,  V.  C,  in  Rochford  v.  Hackman,  that  a  life  estate 


FORFEITURE   FOR   ALIENATION1".  37 

could  be  determined  by  an  alienation,  should  have  been 
perverted,  in  three  independent  cases,  into  a  supposed 
authority  for  allowing  a  i'ee  simple  to  be  so  determined, 
viz.  Pearson  v.  Dolman;  Bridge  v.  Ward,  35  Wis.  687, 
§  24,  ante  ;  Camp  v.  Cleary,  76  Va.  140,  §  29  a,  ante.  In 
the  report  of  Cooper  v.  Macdonald,  20  W.  R.  3/7,  379,  380, 
James,  L.  J.,  is  said  to  have  remarked  obiter  during  the 
argument,  "  You  may  put  any  restriction  you  like  against 
alienation  of  an  estate  in  fee,  so  long  as  you  do  not  violate 
the  Rule  against  Perpetuities."  This  remark  is  not  given 
in  the  other  reports  of  the  case.  7  Ch.  Div.  288 ;  47 
L.  J.  N.  S.  Ch.  373 ;  38  L.  T.  191.] 

§  50.  There  can  be  no  distinction  between  restraining 
alienation  of  a  fee  simple  during  the  life  of  the  tenant  and 
during  the  life  of  a  third  person :  the  decisions  in  Kiall- 
mark  v.  Kiallmark,  and  Kearsley  v.  Woodcock,  and  the 
off-hand  opinion  of  the  "eminent  conveyancer"  expressed 
in  Churchill  v.  Marks,  cannot  outweigh  the  cases  cited  in 
§  47,  see  3  Davidson,  Prec.  Conv.  (3d  ed.)  Ill,  note: 
nor  can  the  dictum  in  Pearson  v.  Dolman  be  considered 
of  as  much  importance  as  the  contrary  remark  in  Benaud 
v.  Tourangeau. 

§  51.  [And  now  in  Be  Bosher,  26  Ch.  D.  801,  Pearson, 
J.,  in  an  elaborate  opinion,  has  ruled  that  the  notion  that 
a  condition  against  alienating  an  estate  in  fee  can  be  made 
good  by  limiting  it  in  time,  is  not  law.  See  a  stupid  arti- 
cle, 28  Sol.  Journ.  559.] 

§  51  a.  [In  Be  Porter,  [1892]  3  Ch.  481,  a  testator 
gave  the  residue  of  his  estate  to  trustees,  in  trust  to 
pay  the  income  to  his  two  sisters  during  their  lives,  and 
after  the  death  of  one  to  the  survivor,  and  on  her  death 
to  divide  the  principal  among  their  children,  payable  at 


38  HKSTltA  I  NTS   ON    ALIENATION. 

twenty-one,  the  share  of  any  child  dying  before  twenty- 
one  to  go  over,  and  lie  declared  that  in  case  any  of  his 
sisters'  children  should,  during  the  lives  of  Ins  sisters  or 
the  survivor,  assign  or  attempt  to  assign  its  expectant 
share,  such  share  should  be  forfeited  and  go  over.  A., 
one  of  the  children,  reached  twenty-one  and  attempted 
to  assign  her  share.  North,  J.,  held  that  A.'s  share  was 
forfeited.  A.'s  counsel  distinguished  Churchill  v.  Marks, 
on  the  ground  that  in  that  case  the  interest  forfeited  was 
contingent.  North,  J,  however,  said:  "I  cannot  see 
that  there  is  any  distinction  in  principle  between  a  con- 
tingent share  and  a  share  which  is  vested  but  liable  to  be 
devested.  I  quite  understand  the  difference  between  the 
two ;  but  I  do  not  see  any  principle  upon  which  I  can 
say  that  the  clause  of  forfeiture  in  the  present  will  can- 
not legally  apply  to  a  vested  share  subject  to  devesting, 
although  it  would  apply  to  a  contingent  share."  But  in 
the  first  place,  a  provision  for  forfeiture  attached  to  a  con- 
tingent estate  is  a  condition  precedent,  while  when  at- 
tached to  an  estate  vested,  although  subject  to  be  devested, 
it  is  a  condition  subsequent,  and  the  distinction  between 
conditions  precedent  and  subsequent  is  vital.  See  §  46, 
ante.  In  the  second  place,  in  Re  Porter,  the  interests 
vested  in  the  sisters'  children  became  indefeasible  when 
they  reached  twenty-one,  so  that  the  real  matter  before 
the  court  was  the  effect  of  a  provision  for  forfeiture  at- 
tached to  an  interest  indefcasibly  vested  though  not  yet 
come  into  possession.  That  sueh  a  provision  is  valid  is  a 
proposition  involved  in  the  decision  of  Be  Porter ;  but  in 
view  of  North,  J.'s  language,  it  is  doubtful  if  he  meant  to 
lay  it  down,  and  if  he  did,  it  must  be  deemed,  it  is  sub' 
mittcd,  unsound.] 


FORFEITURE  FOR  ALIENATION.  39 

§  52.  The  actual  state  of  the  law  in  the  United  States 
is  as  follows.  It  has  often  been  said  that  a  condition 
against  alienation  confined  to  a  limited  period  is  good ; 
but  such  remarks  have  been  obiter  dicta,  without  any  rea- 
soning or  citation  of  authorities.  Cowell  v.  Springs  Co., 
100  U.  S.  55,  57.  Jackson  v.  Schutz,  18  Johns.  1/4,  184. 
Blackstone  Bank  v.  Davis,  21  Pick.  42.  Simonds  \.  Sir 
monds,  3  Met.  558,  562.  Andrews  v.  Spurlin,  35  End. 
262,  268.  [Mnnroe  v.  Hall,  97  N.  C.  206,  210.]  Jau- 
retche  v.  Proctor,  48  Pa.  466,  4/2.  Sanford  v.  Lackland, 
2  Dill.  6,  10.  So,  if  confined  to  a  "reasonable  limited 
period."  Gray  v.  Blanchard,  8  Pick.  284,  289.  See 
[Camp  v.  Chary,  76  Va.  140,  143,]  9  Am.  Law  Reg.  N. 
S.  458,  461-463.  The  case  most  generally  cited  in  favor 
of  the  validity  of  a  limited  restraint  is  M'  Williams  v.  Nisly, 
2  S.  &  R.  507,  513,  in  which  is  to  be  found  a  dictum  of 
Tilghman,  C.  J.,  that  a  limited  restraint  is  good,  supported 
by  a  reference  to  Large  s  Case,  2  Leon.  82;  3  Leon.  182. 
The  Chief  Justice  says :  "  For  what  length  of  time  this 
general  restriction  may  endure,  it  is  not  necessary  to  de- 
cide, nor  shall  I  attempt  to  trace  the  boundary.  Suffice 
it  to  say,  and  I  think  it  may  be  said  with  great  safety, 
that  it  may  last  during  the  life  of  any  person  in  existence 
at  the  time  of  making  the  deed." 

§  53.  The  cases  in  which  such  conditions  have  been 
sustained  are: — (1.)  Stewart  v.  Brady,  3  Bush,  623. 
(See  Stewart  v.  Barrow,  7  Bush,  368.)  Here,  in  an 
opinion  without  any  citation  of  cases,  a  condition  attached 
to  a  devise  in  fee,  that  the  devisee  should  not  sell  till  he 
was  thirty-five  years  of  age,  was  held  good.  (2.)  Dougal 
v.  Fryer,  3  Mo.  40.  (See  Collins  v.  Glamorgan,  5  Mo. 
272 ;  6  Mo.  169 ;  and  Glamorgan  v.  Lane,  9  Mo.  442.) 


40  RESTRAINTS   ON    ALIENATION. 

In  this  case,  in  an  opinion  equally  barren  of  authorities, 
a  condition  not  to  alien  before  the  age  of  twenty-five  was 
held  good.  [In  this  case  the  deed  containing  the  condi- 
tion was  made  when  the  Spanish  law  was  in  force,  and 
by  that  law  twenty-five  was  the  age  of  majority.  Sec  3 
Mo.  43.]  (3.)  Earls  v.  M' Alpine,  27  Grant,  161;  s.  c. 
6  Out.  Ap.  145.  Devise  to  two  sons  on  condition  that 
tiny  did  not  alien  the  land  during  the  life  of  their  mother 
without  her  consent.  The  condition  was  held  good ;  (see 
Armstrong  v.  M' Alpine,  4  Out.  App.  250).  [The  words 
of  the  will  were  simply,  "  I  will  that  my  sons,"  etc.  The 
judges  found  great  dillieulty  in  construing  this  into  a  con- 
dition ;  it  is  surprising  that  they  felt  able  to  do  so ;  see 
Heddlestone  v.  Heddlestone,  15  Out.  280.]  See  also  Pen- 
n //in an  v.  McGrogan,  18  U.  C.  C.  P.  132.  In  Smith 
v.  Faught,  45  U.  C.  Q.  B.  484,  [there  was  a  direction  in 
a  will  that  a  devisee  should  not  sell  during  her  lifetime, 
but  might  devise  to  any  of  her  children.  The  court 
thought  this  restriction  good,  but  that  a  mortgage,  not 
being  a  sale,  was  not  within  it.  In  Be  Winstanley,  G  Out. 
315,  there  was  the  like  restriction  except  that  the  devise 
might  be  to  any  one  ;  and  it  was  held  to  be  valid.  (4.)  In 
Be  Northcote,  18  Out.  10/,  there  was  a  devise  on  an  ex- 
press condition  that  the  devisee  should  not  sell  or  mort- 
gage during  his  life,  but  might  devise  to  his  children,  and 
this  condition  was  held  good.  See  §  55,  post.  (5.)  Be 
Weller,  10  Ont.  318.  A  devise  to  A.  with  a  proviso  that 
she  should  not  sell  until  her  sister  was  forty  years  old  was 
held  good;  and  see  to  the  same  effect  Meyers  v.  Hamilton 
President  Co.,  19  Ont.  358.]  In  Langdon  v.  Ingram,  28 
T  id.  3G0,  a  restraint  against  alienation  during  minority 
wis  held  good,  and  consequently  a  guardian  of  the  minor 
was  not  allowed  to  convey. 


FORFEITURE   FOR   ALIENATION.  41 

§  54.  The  reasoned  authority  is  against  the  validity  of 
such  conditions.  (1.)  A  conditional  limitation  upon  a 
devisees  selling  before  he  reached  thirty-live  was  held 
bad  in  Twitty  v.  Camp,  Phil.  Eq.  (N.  C.)  61.  (2.)  A 
condition  not  to  sell  until  the  youngest  of  two  devisees 
reached  thirty-one  was  held  bad  in  Anderson  v.  Cary,  36 
Ohio  St.  50(3.  [(3.)  Potter  v.  Couch,  141  U.  S.  29G.  Here 
was  a  devise  to  trustees  to  hold  for  twenty  years,  and  then 
to  convey  to  certain  persons  with  a  conditional  limitation 
over  in  case  any  of  those  persons  had  ceased  to  be  person- 
ally interested  in  the  devise.  This  conditional  limitation 
was  held  void.]  In  Mandlebaum  v.  McDonell,  29  Mich. 
78,  the  court  thought  there  was  neither  condition  nor  con- 
ditional limitation,  but  only  a  restriction  on  alienation 
within  a  limited  time ;  but  the  opinion  of  Christiancy,  J., 
holding  the  restriction  bad,  is  the  fullest  argument  against 
the  validity  of  such  conditions  and  conditional  limitations 
to  be  found  in  the  books.  [This  case  was  followed  by 
Bennett  v.  Chapin,  77  Mich.  526.]  A  restriction  on  the 
alienation  of  a  fee  simple  limited  in  time  was  also  held  void 
in  Roosevelt  v.  Thurman,  1  Johns.  Ch.  220  ;  [and  in  other 
easts  the  restriction  against  alienation  was  imposed  on  the 
first  devisee  only,  and  yet  it  was  held  void.  Kepple's  App., 
53  Pa.  211.  Heddlestane  v.  Heddlestone,  15  Out.  280. 
Pritchard  v.  Bailey,  113  X.  C.  521.  See  Murray  v.  Green, 
6  4  Gal.  363,  368.  Since  the  full  discussion  and  the  de- 
cision in  Mandlebanm  v.  McDonell,  followed  and  approved 
by  Re  Rosher,  and  Potter  v.  Couch,  it  is  probably  safe  to 
say  that  the  invalidity  of  restrictions  against  alienation  of 
fees  simple,  though  limited  in  time,  is  now  established, 
except  in  the  Province  of  Ontario.]  For  cases  in  which 
restrictions  limited  in  time  existed,  but  where  their  validity 


42  RESTRAINTS   ON    ALIENATION. 

was  not  discussed  by  the  court,. sec  Holingshed  v.  Alston, 
13  Ga.  277 ;  Fbrw  v.  Renshaw,  19  111.  J2.">;  Lcme  v.  Lewie, 
8  All.  350;  7/"/<tv  v.  fifcefe,  3  Ycates,  205;  s.  C.  2  Biim. 
532,  546  ;  Stones  v.  Money*  3  Term.  Ch.  731  ;  Hill  v.  7////, 
4  Barb.  419;  Armstrong  v.  M' Alpine,  4  Out.  App.  250. 
[Sec  Collins  v.  Fo%,  63  Md.  158.  On  the  effect  which 
the  recognition  of  spendthrift  trusts  may  have  on  this  doe- 
trine,  see  §§  124  a-l-24jh  post.] 

4.   Restraints  on  Alienation  qualified  as  to  Manner. 

§  .35.  A  condition  or  conditional  limitation  aimed  against 
any  particular  mode  of  alienation  is  as  bad  as  if  directed 
against  alienation  generally.  Thus,  a  gift  over  upon  ten- 
ant in  fee  mortgaging,  levying  a  fine,  or  suffering  a  recov- 
ery, is  bad.  Ware  v.  Cann,  10  B.  cv.  C.  4:};}.  So  a  gift 
over  on  the  charging  of  the  fee  with  an  annuity  Is  bad  (the 
gift  over  was  also  bad  for  remoteness).  Willis  v.  Iliscox, 
4  Myl.  &  C.  197,  201,  202.  So  a  direction  not  to  alien, 
except  to  exchange  or  reinvest,  was  held  void  ;  but  here 
there  was  no  condition  or  gift  over.  Hood  v.  Oglander, 
34  Beav.  513.  2  Jarm.  Wills  (5th  cd.),  855.  But  Sir 
George  Jessel,  M.  R.,  said  in  Re  Macleay,  L.  R.  20  Eq.  186, 
139,  "You  may  restrict  alienation  by  prohibiting  a  partic- 
ular class  of  alienation.  .  .  .  This  condition  is  limited.  It 
is  limited  as  to  the  mode  of  alienation,  because  the  only 
prohibition  is  against  selling.  There  are  various  modes  of 
alienation  besides  sale ;  a  person  may  lease,  or  he  may 
mortgage,  or  he  may  settle."  The  Master  of  the  Rolls 
held  the  condition  good  also  on  another  ground.  See 
§  39,  ante.  Following  Sir  George  Jessel,  it  was  held  in 
Smith  v.  Faught,  45  U.  C.  Q.  B.  434,  that  a  condition 


FORFEITURE  FOR  ALIENATION.  43 

that  a  devisee  should  not  sell,  but  might  grant  to  his  chil- 
dren, was  valid,  but  was  not  broken  by  the  devisee's  mort- 
gaging [and  this  was  followed  by  Meyers  v.  I  In  mil  inn 
Provident  &  Loan  Co.,  19  Out.  358.  In  Re  Winstanley, 
6  Ont.  315,  this  doctrine  was  applied  to  support  a  condi- 
tional limitation  over  on  a  devisee's  disposing  of  an  estate 
except  by  will,  on  the  ground  that,  as  a  will  was  one  mode 
of  alienation,  there  was  not  an  absolute  prohibition  to 
alienate,  and  this  was  followed  in  Re  Northcote,  18  Ont. 
107  ;  but  sueh  a  theory  is  ineonsistent  with  the  cases  in 
which  conditions  against  alienation  confined  to  the  life- 
time of  the  first  grantee  have  been  held  invalid.  In  most 
of  the  cases  cited,  §  47,  ante,  the  devisees  or  grantees  were 
not  prohibited  by  the  conditions  from  disposing  of  the 
property  by  will,  and  yet  the  conditions  were  held  bad ; 
and  see  Martin  v.  Martin,  19  Ir.  L.  R.  7'2;  O'Callaghan 
v.  Swan,  13  Viet.  L.  R.  67G.  In  Re  Rosher,  2G  Cb.  D. 
801,  Pearson,  J.,  dissented  strenuously  from  the  Master  of 
the  Rolls,  and  the  obvious  ease  of  evading  such  a  con- 
dition, if  allowed  to  exist,  renders  it  doubtful  whether  Sir 
George  Jessel  will  have  a  following  in  this  matter,  beyond 
what  he  already  has  in  the  Province  of  Ontario.] 

§  5G.  As  a  will  is  one  of  the  modes  of  alienating  prop- 
erty, a  provision  that  a  fee  simple,  or  that  personal  prop- 
erty held  absolutely,  shall  go  over  unless  the  grantee 
disposes  of  it  in  his  lifetime,  is  void,  for  sueh  a  provision 
undertakes  to  limit  the  modes  in  which  an  alienation  may 
take  place,  and  makes  the  gift  over  fail  or  take  effect  ac- 
cordingly as  the  alienation  is  by  deed  or  by  will.  Of 
course  the  fact  that  the  grantee  has  no  power  to  dispose 
of  the  property  by  will  is  a  strong  indication  that  he  takes 
merely  a  life  estate,  with  a  power  of  appointment ;  but 


44  RESTRAINTS   ON   ALIENATION. 

assuming  it  to  be  clear  that  he  takes  the  fee  or  absolute 
interest,  then  the  limitation  over  is  void.  Henderson  v. 
( 'ross,  29  Beav.  216.  Perry  v.  Merritt,  L.  R  18  Eq.  152.1 
[Bowes  v.  Goslett,  27  L.  J.  N.  S.  Ch.  219.] 

§  50  a.  [In  many  eases  in  the  United  States  gifts  over 
of  fee  simple  estates  or  absolute  interests  in  case  the  ten- 
ant or  owner  does  not  convey  in  his  lifetime  have  been 
held  void.  Flinn  v.  Davis,  18  Ala.  132.  McKenzie's 
Appeal,  11  Conn.  GO/.  (Jutland  v.  Bowen,  115  Ind.  150. 
Bona  v.  Meier,  4/  Iowa,  607-  Case  v.  Dwire,  60  Iowa, 
442.  Alden  v.  Johnson,  63  Iowa,  124.  Be  Will  of  Bar- 
bank,  60  Iowa,  378.  Salliday  v.  Stickler,  78  Iowa,  388. 
Bills  v.  Bills,  80  Iowa,  269.  Jones  v.  Bacon,  68  Me.  34. 
Kelley  v.  Meins,  135  Mass.  231.  Jorftm  v.  Bhoades,  150 
Mass.  301.  Annin  v.  Vandoren,  1  McCart.  135.  McDon- 
ald v.  FFaMproffc,  1  Sandf.  Ch.  274.  McLeans  v.  J/«c- 
donald,  2  Edm.  393.  Campbell  v.  Beaumont,  91  X.  V.  464. 
Faw  //onw  v.  Campbell,  100  K  Y.  287-  Ncwland  v.  iVew- 
?awd,  1  Jones,  463.  C7rrr&  v.  Ilardwick  Seminar}/,  3  Ohio, 
C.  C.  152.  Daws  v.  Biehardson,  10  Yerg.  290.  £ea«  v. 
Ifyers,  1  Coldw.  226.  Riddick  v.  Cohoon,  4  Rand.  547. 
Mr/son  v.  7)oe,  4  Leigh,  408.  Jl/W//  v.  Joynes,  20  Grat. 
692.  CoZe  v.  CoZe,  79  Va.  251.  flaW  v.  PaZmer,  87  Va. 
35  1.  Bowen  v.  Bowen,  Id.  438.  Sec  also  Pellizzarro  v. 
Beppert,  83  Iowa,  497;  Bamsdell  v.  Bamsdell,  21  Me. 
288;  Pickering  v.  Lane/don,  22  Me.  413;  Mitchell  v. 
Morse,  77  Me.  423;  MerriU  v.  EWery,  10  Pick.  507; 
Perry  v.  Cross,  132  Mass.  454;  /owes  v.  ./o»e.s,  25  Mich. 
401 ;  UVm/  v.  Gray,  78  Mo.  59 ;  McClellan  v.  Larchar,  45 

1  [In  many  eases  the  gift  over  is  got  rid  of  by  holding  the  words  used 
too  uncertain  to  create  a  trust.  See  the  cases  collected,  1  Jarrn.  Wills  (5th 
ed.),  333.     Cf.  also  MHs  v.  Newberry.  112  111.  123.] 


FORFEITURE   FOR   ALIENATION'.  45 

K  J.  Eq.  17 ;  Helmer  v.  Shoemaker,  22  Wend.  1:57  ;  Smith 
v.  />V//,  Mart.  &Y.  302;  Stowell  v.  Eastings,  59  N't.  194; 
^/c"//  v.  Lancasterian  School,  2  Pat.  &  II.  5:5;  Carr  v. 
Effinger,  78  Va.  197.  Cf.  \Vorfmnn  v.  Robinson,  H  Hun, 
357,  contra;  and  also  Banjield  v.  Wiggin,  58  X.  II.  155; 
CAase  v.  ( Wrier,  03  N.  II.  90.] 

§  56  6.  [In  few,  if  any,  of  these  cases,  however,  is  the 
invalidity  of  the  gift  over  attributed  to  its  being  a  restraint 
on  alienation  by  will.  The  eases  are  based  by  the  courts 
on  the  ground  (discussed  in  §§  57-74  g,  post)  that  a  gift 
over  upon  the  failure  to  alienate  a  fee  in  any  way  is  bad. 
Indeed,  in  the  cases  cited  in  the  two  preceding  sections  as 
deciding  that  a  gift  over  upon  failure  to  convey  during  life 
is  bad,  it  was  an  heir  or  administrator,  more  frequently 
than  a  devisee  or  executor,  whose  right  was  maintained 
against  a  gift  over.] 

§  50  c.  In  Doe  d.  Stevenson  v.  Glover,  1  C.  B.  448,  there 
was  a  devise  to  A.  and  his  heirs,  but  if  A.  died  without 
issue  living  at  his  death,  and  had  not  disposed  of  his  in- 
terest in  his  lifetime,  then  over  to  B.,  and  the  gift  over  was 
held  good.  Turner,  L.  J.,  in  Holmes  v.  Godson,  8  DeG. 
M.  &  G.  152,  100,  disapproved  this  case,  and  remarked 
that  neither  court  nor  counsel  seemed  to  have  observed 
that  to  hold  the  devise  over  good  was  to  restrain  the 
tenant  in  fee  from  making  a  will  of  his  lands  while  allow- 
ing him  to  convey  by  deed.  [But  the  case  may  be  sup- 
ported on  the  ground  that  there  was  a  restraint  on  mak- 
ing a  will,  not  absolute,  but  only  upon  the  contingency 
that  A.  died  without  leaving  issue  at  his  death.  If  there 
had  been  a  simple  gift  over  in  case  A.  had  died  without 
issue  him  surviving,  such  gift  over  would  have  been  good. 
and  it  does  not  seem  as  if  such  good  gift  would  be  ren- 


i'  RESTRAINTS  o.\    ALIENATION. 

dered  bad  by  being  limited  in  its  generality  and  confined 
to  those  eases  where  A.  had  made  no  alienation  in  his 
lifetime.  Turner,  L.  J.'s  real  objection  to  Doe  d.  Steven' 
son  v.  Glover  was  that  it  was  inconsistent  with  the  doc- 
trine laid  down  in  Holmes  v.  Godson,  §§  61-64,  post.~\ 

§  56  (/.  [The  case  oi  Hull  v.  Robinson,  'A  Jones  Eq.  348, 
was  decided  on  the  ground  above  suggested  as  the  true 
reason  for  Doe  v.  Glover.  Personal  property  was  be- 
queathed to  T.,  but  if  he  died  under  age,  or  if  he  died  of 
full  age  but  intestate  and  without  issue,  then  to  II.  The 
gift  to  H.  was  held  good.  The  court  say :  "  The  only 
difference  between  the  present  case  and  the  ordinary  cases 
of  conditional  limitations  and  executory  devises  and  be- 
quests is  that,  here,  the  future  contingent  estate  is  made 
to  depend  not  only  upon  the  event  of  the  death  of  the 
taker  of  the  determinable  fee  under  age,  and  if  of  age 
without  leaving  issue,  but  upon  the  additional  event  of 
his  dying  intestate,  so  as  to  make  three,  instead  of  one  or 
two,  contingencies."  So  in  Fogarty  v.  Stuck,  86  Tenn. 
610,  land  was  conveyed  by  a  man  to  his  wife  in  fee  to 
her  separate  use,  with  power  by  deed  executed  jointly  with 
her  husband  to  convey  the  land  and  hold  the  proceeds  on 
the  same  use,  provided  that  if  the  husband  survived  the 
land  should  revert  to  him.  This  last  provision  was  held 
good.  And  again  in  Randolph  v.  Wright,  81  Va.  608, 
land  was  devised  two  thirds  to  A.  and  his  heirs,  and  one 
third  to  B.  and  his  heirs,  but  should  either  die  without 
lawful  issue  (which  under  the  Virginia  statute  meant  a 
definite  failure  of  issue)  or  without  a  will,  then  his  share 
to  go  to  the  survivor.  A.  died  without  issue  and  intes- 
tate. It  was  held  that  the  gift  over  was  good.  And  see 
to  the  same  effect  Friedman  v.  Steiner,  107  111-  125.     But 


FORFEITURE   FOR  ALIENATION.  47 

barker's  Appeal,  00  Pa.  141,  §  71,  post,  and  Fisher  v. 
Wister,  154  Pa.  05,  §  71  a,  ^>.s/,  are  cowfra.] 

§  50  e.  [It  is  to  bo  observed  that  in  none  of  the  cases 
cited  in  the  preceding  section  was  the  devisee  given  any 
right  of  disposal  in  his  lifetime  overriding  the  executory 
gift;  and,  as  might  be  anticipated  from  the  grounds  on 
which  the  courts  have  placed  the  cases  cited  in  §  50  a, 
gifts  over  upon  the  tenant  in  fee  or  absolute  owner  not 
conveying  in  his  lifetime  and  dying  without  leaving  chil- 
dren or  issue  at  his  death  have  been  held  bad  in  Flinn  v. 
Davis,  18  Ala.  132;  Outland  v.  Bowen,  115  Ind.  150; 
Kelley  v.  Meins,  135  Mass.  231  ;  Annin  v.  Vandoren,  1 
McCart.  135;  Jackson  v.  Bull,  10  Johns.  19;  Van  Home 
v.  Campbell,  100  N.  Y.  287;  Biddick  v.  Co/won,  4  Rand. 
547 ;  Melson  v.  Doe,  4  Leigh,  408.  So  gifts  over  upon  a 
devisee  dying  without  leaving  issue  at  his  death,  and 
without  having  disposed  either  in  his  lifetime  or  by  will, 
of  the  property  devised,  was  held  void  in  Combs  v.  Combs, 
67  Md.  11.  So  Armstrong  v.  Kent,  1  Zabr.  509.  Cf. 
Eaton  v.  Straw,  18  K  H.  320;  O'Callaghan  v.  Swan, 
13  Vict.  L.  R.  070  ;  and  see  2  Lead.  Cas.  in  Amer.  L.  of 
Real  Prop.  482,  483;  32  Am.  L.  Reg.  N.  S.  1044, 
1045.] 

§  50/.  [If  a  tenant  in  fee  or  owner  of  personal  property 
has  power  of  disposition  in  his  lifetime,  but  is  restrained 
from  devising  or  bequeathing  to  particular  persons,  or  is 
directed  to*  devise  or  bequeath  to  particular  persons,  such 
restraint  or  direction  is  void  in  like  manner  as  a  general 
restraint.  Newland  v.  Newland,  1  Jones,  403.  Good  v. 
Fichthom,  144  Pa.  287-  See  Matter  of  Hohman,  37  Hun, 
250.  But  cf.  McMurry  v.  Stanley,  09  Tex.  227 ;  and  see 
also  Mills  v.  Newberry,  112  111.  123.] 


48  RESTRAINTS  OX    ALIENATION. 

§  06  g.  [The  New  York  Revised  Statutes,  Part  2,  c.  1, 
tit.  2,  art.  1,  §  32,  p.  7'2o,  provides  that  "No  expectant 
estate  can  be  defeated  or  barred  by  any  alienation  or  other 
act  of  the  owner  of  the  intermediate  or  precedent  estate, 
nor  by  any  destruction  of  such  precedent  estate,  by  dis- 
seisin, forfeiture,  surrender,  merger,  or  otherwise. '  The 
revisers  doubtless  were  thinking  of  cases  on  the  destruc- 
tion of  contingent  remainders,  and  there  is  no  reason  to 
suppose  they  had  iu  mind  such  limitations  as  are  here  dis- 
cussed. But  the  lower  courts  of  New  York  have  held 
that,  under  the  Revised  Statutes,  upon  an  estate  in  fee  a 
gift  over  of  what  the  devisee  has  not  conveyed  in  his  life- 
time is  good.  Greystou  v.  Clark,  41  Hun,  125.  Simp- 
son v.  French,  6  Demarest,  108.  Leggett  v.  Firth,  53 
Hun,  152.  Baumgras  v.  Baumgras,  5  Delehanty,  8.  In 
Griswold  v.  Warner,  51  Hun,  12,  however,  such  a  gift 
was  held  bad ;  and  no  suggestion  wras  made  by  the  court 
as  to  any  change  being  wrought  by  the  Revised  Statutes. 
The  point  does  not  seem  to  have  been  passed  upon  by  the 
Court  of  Appeals.     Cf.  Leggett  v.  Firth,  132  N.  Y.  /.] 

5.    Gifts  over  upon  Intestacy. 

§  57.  It  has  been  often  said  and  held  that  a  devise  to 
A.  in  fee,  but  if  A.  dies  without  having  disposed  of  the 
land  by  deed  or  will,  then  over  to  B.,  is  bad.  It  is  not  at 
first  easy  to  say  why  this  should  be  so ;  the  owner  of  the 
land  has  full  power  of  alienation,  either  by  deed  or  will. 
It  rests  indeed  with  him  to  say  whether  the  gift  over  shall 
take  effect,  but  that  is  the  case  with  many  executory  de- 
vises. A  devise  may  be  made  to  A.  with  a  gift  over,  unless 
at  his  death  he  has  been  married,  or  has  been  called  to 


FORFEITURE   FOR   ALIENATION".  49 

the  bar,  or  has  gone  to  Rome,  or  lias  given  $100  to  B. ; 
and  no  one  will  question  that  the  gift  over  is  good,  al- 
though it  may  rest  entirely  within  A.'s  control  whether 
the  event  which  is  to  prevent  the  gift  over  shall  take  place 
or  not.  What  illegality  is  there  in  an  executory  devise 
depending  on  A.'s  not  making  a  deed  or  will,  if  he  has 
the  power  of  making  one  should  he  so  wish  ? 

§  58.  A  gift  over  of  what  is  left  undisposed  of  by  the 
first  taker,  either  in  his  lifetime  or  by  his  will,  was  early 
considered  in  the  cases  where  the  gift  was  of  a  sum  of 
money  or  of  a  residue.  Such  gifts  were  held  bad,  and  for 
a  good  reason,  —  for  uncertainty,  and  the  difficulty,  if  not 
impossibility,  of  determining  the  subject  matter  of  the  gift 
over.  That  was  the  reason  which  was  given  in  the  first 
cases.  Lightburne  v.  Gill,  3  B.  P.  C.  (Toml.  ed.)  250 
(1764).  The  intention  "must  fail  on  account  of  its  un- 
certainty." Per  Sir  William  Grant,  M.  R.,  Bull  v.  Kings- 
ton, 1  Mer.  314  (1816).  The  doctrine  in  such  cases  is 
now  well  settled.  Boss  v.  Ross,  1  Jac.  &  W.  154.  Cuth- 
bert  v.  Purrier,  Jac.  415.  [Brown  v.  Gibbs,  1  R.  &  Myl. 
614.]  Phillips  v.  Eastwood,  Lloyd  &  G.  temp.  Sugd.  270, 
297,  298.  Green  v.  Harvey,  1  Hare,  428.  "  It  is  a  rule 
that,  where  a  money  fund  is  given  to  a  person  absolutely, 
a  condition  cannot  be  annexed  to  the  gift  that  so  much 
as  he  shall  not  dispose  of  shall  go  over  to  another  person. 
Apart  from  any  supposed  incongruity,  a  notion  which 
savors  of  metaphysical  refinement  rather  than  of  anything 
substantial,  one  reason  which  may  be  assigned  in  support 
of  the  expediency  of  this  rule  is,  that  in  many  cases  it 
might  be  very  difficult,  and  even  impossible,  to  ascertain 
whether  any  part  of  the  fund  remained  undisposed  of  or 
not ;  since,  if  the  person  to  whom  the  absolute  interest 

4 


50  RESTRAINTS  ON  ALIENATION. 

is  given  left  any  personalty,  it  might  be  wholly  uncertain 
whether  it  were  part  of  the  precise  fund  which  was  the 
subject  of  the  condition  or  not.  Another  reason  may  be, 
that  it  would  be  contrary  to  the  well-being  of  the  party 
absolutely  entitled  to  lead  him  profusely  to  spend  all  that 
was  given  him,  which  in  many  cases  might  be  all  that  he 
had  in  the  world."  Per  Lord  Truro,  C,  Watkins  v.  Wil- 
liams, 3  Macn.  &  G.  622,  029.  Re  Yalden,  1  DeG.  M.  & 
G.  ,"i:}.  Be  Mortlock's  Trust,  3  K.  &  J.  450.  Barton  v. 
Barton,  Id.  512.  Weale  v.  Oil  ire,  32  Bcav.  421.  In  re 
Wilcocks'  Settlement,  1  Ch.  D.  221.  [1  Jarm.  Wills  (5th 
ed.),  333.  See  Howes  v.  Goslett,  27  L.  J.  X.  S.  Ch.  241) ; 
II,  nderson  v.  ( 'ross,  20  Beav.  21 G  ;  Perry  v.  Merritt,  L.  It. 
18  Eq.  152;  32  Am.  L.  Reg.  N.  S.  1037-]  (Upwell  v. 
Hahey,  1  P.  Wins.  051,  must  be  deemed  overruled.  See 
§  05  ff,  iiost.^) 

§  59.  This  objection  of  uncertainty  docs  not,  however, 
apply  to  real  estate,  and  if  a  devise  over  of  land  upon  the 
intestacy  of  the  first  taker  is  to  be  deemed  bad,  some  other 
reason  must  be  found  for  the  conclusion.  In  Gulliver  v. 
Vaux,  decided  in  the  Common  Pleas  in  1/40,  not  reported 
in  the  contemporary  reports,  but  printed  from  the  MSS. 
of  Mr.  Justice  Burnett,  8  DeG.  M.  &  G.  167,  it  was  held 
that  a  gift  over  upon  the  death  of  the  testator's  children 
(to  whom  the  estate  was  given)  without  leaving  issue,  and 
without  appointing  the  disposal  of  the  same,  was  bad. 
Burnett,  J.,  said  (p.  172):  "What  is  the  condition  here? 
That  if  Thomas  [the  testator's  son]  dies  without  issue 
his  heirs  shall  not  take  by  descent,  but  by  appointment, 
whereas  a  devise  to  a  man's  heir  at  law,  or  grant  to  heirs, 
is  void,  and  he  will  take  by  descent.  Counden  v.  Clerke, 
Hob.  29.     In  this  case,  therefore,  a  devise  in  fee,  upon  the 


FORFEITURE   FOR  ALIENATION.  51 

condition  that  his  heirs  shall  not  take  by  descent,  unless 
lie  specially  appoint  them,  is  a  void  condition,  and  conse- 
quently the  devise  subsisting  on  that  condition  is  void." 
The  argument  is,  that,  as  a  man  cannot  devise  property  to 
his  heirs,  they  must  take  by  descent;  that,  if  they  cannot 
take  by  descent,  they  cannot  take  at  all;  and  that  a  man 
would  be  precluded  by  this  condition  from  allowing  his 
fee-simple  estate  to  go  to  his  heirs,  because  any  attempt 
to  devise  it  to  them  would  be  inefficacious.  If  Thomas 
should  devise  the  land  to  his  heirs,  there  would  be  no  de- 
vise at  all,  he  would  not  have  disposed  of  the  land,  and  (if 
he  left  no  issue)  the  gift  over  would  take  effect.  Thus 
Thomas  would  have  a  fee  simple,  and  yet  it  could  by  no 
possibility  go  to  his  heirs.  This  reasoning  would  hardly 
find  acceptance  at  the  present  day,  and  a  devise  to  a  man's 
heirs,  although  they  took  by  descent,  would  be  a  sufficient 
disposal  to  prevent  the  gift  over  taking  effect.  But  it 
must  be  observed  that  this  reasoning,  narrow  as  it  is,  is 
the  reasoning  on  which  Gulliver  v.  Vaux  goes.  [See  32 
Am.  L.  Reg.  N.  S.  1036.] 

§  GO.  In  Doe  d.  Stevenson  v.  Glover,  1  C.  B.  448,  there 
was  a  devise  to  A.  and  his  heirs;  but  if  A.  should  die 
without  issue  then  living,  and  should  not  have  disposed 
of  his  interest  in  his  lifetime,  then  to  B.  It  was  held  that 
the  gift  over  was  good.  Gulliver  v.  Vaux  was  not  cited, 
and  was  doubtless  not  known.  It  is  to  be  observed,  as 
noticed,  (§  56  e,  ante,)  that  in  this  case  alienation  by  will 
was  restrained,  if  A.  died  without  issue  then  living. 

§  61.  In  Holmes  v.  Godson,  8  DeG.  M.  &  G.  152,  a 
testator  gave  real  and  personal  estate  in  trust  for  A.,  to 
vest  in  him  at  twenty-one  ;  but  if  he  should  die  under 
twenty-one,  or    having  attained    twenty-one  should    not 


5 2  RESTRAINTS  ON   ALIENATION. 

have  made  a  will,  then  over.  Knight  Bruce  and  Turner, 
I,.  .],].,  held  that  the  property  voted  in  A.  absolutely  at 
twenty-one,  and  that  the  gift  over  was  void.  The  Lord 
•lust ice  Turner  gave  the  reasons  for  the  decision  thus 
(pp.  151),  100):  "The  law,  which  is  founded  on  princi- 
ples of  public  policy  for  the  benefit  of  all  who  are  subject 
to  its  provisions,  has  said  that  in  the  event  of  an  owner 
in  fee  dying  intestate  the  estate  shall  go  to  his  heir,  and 
this  disposition  tends  strictly  to  contravene  the  law,  and 
to  defeat  the  policy  on  which  it  is  founded.  On  principle, 
therefore,  I  think  the  disposition  bad."  For  authority  he 
mainly  relies  on  Gulliver  v.  Vaux.  [The  decision  of 
Holmes  v.  Godson  did  not  call  for  the  laying  down  of 
any  such  doctrine.  The  effect  of  the  language  in  that 
ease  was  that  no  alienation  made  by  A.  in  his  lifetime  was 
valid,  unless  he  left  a  will.  That  practically  prevented 
his  selling  the  estate;  for  the  purchaser  would  lose  the 
land  if  A.  should  die  intestate,  a  matter  which  was  in 
the  sole  control  of  A.  It  might  therefore  have  been 
well  held  that  the  gift  over  in  that  case  was  void,  without 
establishing  the  doctrine  laid  down  by  the  court.] 

§  62.  Ilolines  v.  Godson  is  a  very  deliberate  and  careful 
judgment.  It  has  been  followed,  and  the  principle  upon 
which  it  purports  to  go  has  been  approved  in  Chancery, 
and  given  as  the  reason  for  holding  to  be  bad  gifts  over 
of  "  what  remains  "  of  personalty,  instead  of  the  "  uncer- 
tainty "  which  the  earlier  cases  alleged  to  be  the  ground 
for  the  invalidity  of  these  gifts.  Barton  v.  Barton,  3  K. 
A:  .!.  5  1  2.  Howes  v.  Gosleft,  2/  L.  J.  N.  S.  Ch.  249.  117/- 
cocks'  Settlement,  1  Ch.  D.  229.  [Stretton  v.  Fitzgerald, 
2:}  Ir.  L.  R.  310,  466.  And  see  Welsh  v.  Woodbury,  144 
Mass.  542.]    And  it  is  treated  as  settled  law  in  the  modern 


FORFEITURE  FOR  ALIENATION.  53 

text-books,  e.  g.  Thcob.  Wills  (3d  ed.),  427,  and  as  having 
overruled  Doe  d.  Stevenson  v.  Glover.  2  Jarm.  Wills  (5th 
ed.),  856,  note  (d).  [See  32  Am.  L.  Reg.  N.  S.  1038.] 
Such  a  limitation  over  is  bad  in  the  case  of  a  gift  of  money, 
or  of  a  residue,  and  it  is  desirable  to  have  a  uniform  rule 
for  all  kinds  of  property. 

§  03.  On  the  other  hand,  Doe  v.  Glover  is  a  distinct 
authority  that  land  devised  in  fee  may  be  given  over  if 
not  disposed  of  by  the  grantee  ;  and  this  decision,  although 
departed  from  in  the  Chancery,  has  never  been  overruled 
at  common  law,  and  Gulliver  v.  Vaux  rests  on  the  nar- 
row ground  stated.  [It  should  be  observed  also  that  in 
Holmes  v.  Godson,  conveyance  inter  vivos  was  practically 
restrained,  as  above  noted,  and  that  this  was  so  too  in 
Barton  v.  Barton,  which  seems  to  be  the  only  English 
case  on  this  point  since  Holmes  v.  Godson,  in  which  real 
estate  is  concerned.  That  is,  it  has  never  been  actually 
held  in  England  that  if  land  is  devised  in  fee  with  a  gift 
over  in  case  the  devisee  does  not  dispose  of  it  in  his  life- 
time or  by  his  will,  the  gift  over  is  bad.  In  Ireland  such 
a  gift  was  held  bad  in  Stretton  v.  Fitzgerald,  ubi  supra.'] 
Any  distinction  between  real  and  personal  property  is 
treated  as  irrational  by  Turner,  L.  J.,  in  Holmes  v.  God- 
son, 8  DeG.  M.  &  G.  152,  100,  101,  and  by  Fry,  J.,  in 
Shaiv  v.  Ford,  7  Ch.  D.  009,  67± ;  but  the  ground  on 
which  originally  such  limitations  upon  gifts  of  personalty 
were  held  good  (namely,  the  difficulty  of  identifying  the 
undisposed  of  balance)  does  not  exist  in  realty.  And 
upon  principle,  (as  has  been  said,  §  o7,  ante,)  there  seems 
no  difference  between  the  contingency  of  not  making  a 
deed  or  will  and  any  other  contingency.  Fry,  J.,  in  Shaw 
v.  Ford,  ubi  supra,  while  asserting  that  the  law  is  settled 


54  RESTRAINTS   OX    ALIENATION. 

by  Holmes  v.  Godson,  declines  "to  inquire  into  the  logical 
sufficiency  of  the  reason  given."  The  most  formal  state- 
ment of  a  reason  for  any  difference  is  given  by  Fry,  A.,  in 
this  case  (p.  G7->) :  "  Prima  facie,  and  speaking  generally, 
an  estate  given  by  will  may  be  defeated  on  the  happening 
of  any  event;  but  that  general  rule  is  subject  to  many  and 
important  exceptions.  One  of  these  exceptions  may,  in 
my  opinion,  be  expressed  in  this  manner,  that  any  execu- 
tory devise,  defeating  or  abridging  an  estate  in  lee  by 
altering  the  course  of  its  devolution,  which  is  to  take 
effect  at  the  moment  of  devolution  and  at  no  other  time, 
is  bad.  The  reason  alleged  for  that  is  the  contradiction 
or  contrariety  between  the  principle  of  law  which  regu- 
lates the  devolution  of  the  estate,  and  the  executory  devise 
which  is  to  take  effect  only  at  the  moment  of  devolution, 
and  to  alter  its  course.  I  am  not  bound  to  inquire  into 
the  logical  sufficiency  of  the  reason  given,  because  it  ap- 
pears to  me  that  the  exception  is  well  established  by  the 
cases  of  Gulliver  v.  Vaux,  Holmes  v.  Godson,  and  Ware  v. 
Cann."  Obviously  the  reason  does  not  commend  itself  to 
the  learned  judge,  aside  from  the  authority  of  those  who 
have  announced  it.  But  apart  from  this  there  is  no  such 
exception  as  he  lays  down.  Suppose  an  estate  in  fee  sim- 
ple is  given  to  A.,  but  if  he  dies  without  issue  living  at 
bis  death,  then  over  to  B.  Here  we  have  an  executory 
devise  unquestionably  good,  yet  it  defeats  an  estate  in  fee 
"by  altering  the  course  of  its  devolution,"  and  it  takes 
effect  "  at  the  moment  of  devolution  and  at  no  other  time." 
In  fact,  most  executory  devises  take  effect  at  the  death  of 
the  first  taker,  —  that  is,  "at  the  moment  of  devolution 
and  at  no  other  time."  This  "supposed  incongruity"  of 
a  gift  over  on  intestacy  is,  to  use  the  words  of  Lord  Truro, 


FORFEITURE   FOR  ALIENATION. 

(cited  §  58,  ante,')  "a  notion  which  savors  of  metaphysi- 
cal refinement  rather  than  of  anything  substantial.' 

§  G4.  Mr.  Justice  Fry.  in  this  same  case  of  Shaw  v. 
Ford,  gives  another  reason  for  declaring  gifts  on  intestacy 

bad ;  and  if  the  doctrine  is  to  be  upheld,  this  is  undoubt- 
edly the  least  irrational  ground  on  which  it  can  be  put. 
"Any  executory  devise,''  he  says  (p.  674),  "which  is  to 
defeat  an  estate,  and  which  is  to  take  effect  on  the  exer- 
cise of  any  of  the  rights  incident  to  that  estate,  is  void. ' 
Of  this  a  devise  over  upon  alienation  is  an  instance,  and 
so  also  is  a  devise  upon  not  alienating,  for  the  right  to 
enjoy  without  alienation  is  as  much  an  incident  to  the 
estate  as  the  right  to  alienate;  and  on  this  ground  he 
decided  that,  where  land  was  devised  to  several  as  ten- 
ants in  common,  with  a  proviso  that,  if  one  died  before 
partition,  his  share  should  go  over,  the  gift  over  was  void, 
because  the  right  of  tenants  in  common  to  hold  their  inter- 
ests undivided  is  an  incident  of  the  estate.  See  [32  Am. 
L.  Reg.  N.  S.  1038,]  §  30,  ante} 

§  65.  In  America  a  gift  over  of  personalty,  if  the  first 
taker  does  not  dispose  of  it  in  his  lifetime  or  by  will,  is 
bad.  [Allen  v.  White,  16  Ala.  181.  Foster  v.  Smith,  156 
Mass.  379.  Armstrong  v.  Kent,  1  Zabr.  509.  Hoxsey  v. 
Hoxsey,  37  X.  J.  Eq.  21.]  Smith  v.  Bell,  Mart.  &  Yerg. 
302.     Sevier  v.  Brown,  2  Swan,  112.     See  Smith  v.  Bell, 

1  It  has  been  held,  that  where  there  is  a  gift  by  will  to  A.,  hut,  if  he 
does  not  dispose  of  it,  then  at  his  death  to  B.,  B.  will  not  take,  though  A. 
dies  before  the  testator.  Hughes  v.  Ellis,  20  Beav.  193.  Greati  d  v.  ( } 
26  Beav.  621.  But  these  cases  are  questioned,  with  good  reason,  in 
Stringer's  Estate,  6  Ch.  Div.  1;  and  Burbank  v.  Whitney,  24  Pick.  146 
fand  Cmzicr  v.  Bray,  39  Hun,  121,  are]  contra.  [See  also  Eat 
18  X.  H.  320,  333  ;  Odell  v.  Odcll,  10  All.  1,  7.  But  cf.  2  Jarin.  Wills 
(5th  ed.),  856.] 


56  RESTRAINTS  OX  ALIENATION". 

(J  Pet.  68.  [These  cases  are  not  placed  on  the  uncertainty 
or  difficulty  of  tracing  personal  property,  baton  the  grounds 
upon  which,  as  shown  in  the  following  sections,  east's  con- 
cerning  real  estate  are  generally  dealt  with  in  the  United 
States,  and  upon  which  also  the  eases  cited,  ^  .">(>  a  <  f  seqq.} 
restraining  the  power  of  disposition  by  will  are  put.  Many 
of  these  latter  eases  concern  personalty  either  alone  or  in 
connection  with  realty.  E.g.  Flinn  v.  Davis  ;  McKenzie's 
A/>j>ral ;  Be  117//  of  Burbank;  Hills  v.  Bills;  Jones  v. 
Bacon;  Joslin  v.  Bhoades;  Annin  v.Vandoren;  Camp- 
bell v.  Beaumont;  Newland  v.  Newland;  Clark  v.  Hard- 
wick  Seminary;  Davis  v.  Bichardson;  Bean  v. Meyers; 
Riddick  v.  Cohoon;  May  v.  Joins;  Cole  v.  Cole;  Boiven 
v.  Bowen;  Men-ill  v.  Emery;  Joins  v.  Jones;  Stowell  v. 
Hastings;  Elcan  v.  Lancastrian  School ;  Can-  v.  Effinger  ; 
Wort  man  v.  Bobinson;  Half  v.  Robinson  :  Matter  of  Hoh- 
man;  Mills  v.  Newberry ;  Simpson  v.  French;  Griswold 
V.  Warner.'] 

§  65  a.  [In  Cox  v.  Wills,  49  N.  J.  Eq.  130,  a  testator 
gave  a  legacy  to  his  wife,  believing  that  she  would  dis- 
tribute by  will  among  his  near  relatives  so  much  of  the 
legacy  as  she  might  not  use  for  comfortable  maintenance. 
Pitney,  V.  C,  held  that  the  wife  had  not  a  general  power 
of  disposition,  but  power  to  dispose  of  only  so  much  as 
might  be  needed  for  her  comfortable  maintenance.  It 
may  be  difficult  to  support  this  case  on  any  theory.  It 
finds,  indeed,  some  support  in  Upwell  v.  Halsey,  1  P. 
Wins.  651,  where  personal  property  was  bequeathed  to  a 
wife,  with  a  direction  that  what  she  should  leave  of  her 
subsistence  should  go  to  the  testator's  sister,  and  in  which 
it  was  held  that  the  wife  could  take  only  what  was  neces- 
sary for  her  subsistence,  and  that  what  was  not  so  taken 


FORFEITURE   FOR  ALIENATION.  57 

went  to  the  sister.  But  of  this  lust  ease  Lord  Loughbor- 
ough, C,  said  in  Malim  v.  Keighley,  2  Ves.  Jr.  5:29,  532 : 
"Perhaps  the  determination  may  be  very  much  doubted;" 
and  Sir  E.  B.  Sugden,  C,  in  Phillips  v.  Eastwood,  LI.  &  G. 
temp.  Sugd.  -2J0,  298:   "That  ease  is,  I  think,  overruled." 

§  (i(i.  We  have  seen  that  in  the  English  Chancery  a 
gift  over  after  a  devise  of  realty  in  ease  anything  should 
remain  at  the  devisee's  death,  and  lie  should  die  intestate, 
has  been  held  bad,  either  on  the  ground  that  the  law  in- 
sists that  the  real  estate  of  a  man  dying  intestate  must  go 
to  his  heirs,  or  on  the  somewhat  more  satisfactory  ground 
suggested  by  Fry,  J.,  in  Slunc  v.  Ford,  that  the  right  to 
enjoy  without  alienation  is  a  necessary  incident  of  an  estate 
in  fee  simple.  In  America  the  same  result  has  generally 
been  reached,  but  in  a  different  way ;  viz.  on  the  supposed 
authority  of  a  case  in  Fitzgibbon,  and  on  a  theory  invented, 
it  would  seem,  by  Chancellor  Kent. 

§  G~.  The  first  case  in  the  United  States  was  Ide  v, 
Ide,  5  Mass.  500.  This  was  a  gift  by  will  of  realty  and 
personalty  to  the  testator's  son,  P.,  and  his  heirs ;  but  if 
P.  should  die  and  leave  no  heirs,  then  what  estate  he 
should  leave  was  to  go  to  the  testator's  son  J.  and  his 
grandson  X.  On  a  writ  of  entry  by  X.,  the  court  (Par- 
sons, C.  J.,  delivering  the  opinion)  held  that  P.  took  a 
fee  simple  and  not  a  fee  tail,  although  the  word  "heirs" 
in  the  phrase  "  leave  no  heirs  "  meant  heirs  of  the  body ; 
and  that  the  gift  over  was  void,  on  the  ground  that 
"  whenever  it  is  the  clear  intention  of  the  testator  that 
the  devisee  shall  have  an  absolute  property  in  the  estate 
devised,  a  limitation  over  must  be  void,  because  it  is 
inconsistent  with  the  absolute  property  supposed  in  the 
first  devisee.     And  a  right  in  the  first  devisee  to  dispose 


58  RESTRAINTS  ON   ALIENATION". 

of  the  estate  devised  at  liis  pleasure,  and  not  a  mere 
power  of  specifying  who  may  take,  amounts  to  an  un- 
qualified  gift." 

§  68.  The  decision  in  Ide  v.  Ide  purports  to  be  based 
on  Attorney  General  v.  Hall,  Fitzg.  314  (1731),  in  Chan- 
cery before  Lord  King,  C,  Jekyll,  M.  11.,  and  Reynolds, 
C.  B. ;  reported  also  in  W.  Kel.  13,  and  in  2  Eq.  Cas.  Ab. 
•2{VA,  pi.  21.  That  ease  was  shortly  this.  A  testator  gave 
realty  and  personalty  to  A.  and  the  heirs  of  his  body,  and 
if  A.  should  die,  leaving  no  heirs  of  his  body  living,  then 
so  much  of  the  realty  and  personalty  as  A.  should  be  pos- 
sessed of  at  his  death  to  a  charity.  A.  suffered  a  recovery 
of  the  realty,  and  died  without  issue.  The  charity  sought 
an  account  of  the  realty  and  personalty.  It  was  held  that 
A.  was  tenant  in  tail  of  the  realty,  and  the  charity  there- 
fore was  barred  by  the  recovery.  As  to  the  personalty, 
the  defendant,  who  was  the  executrix,  relied  on  the  distinc- 
tion (now  fully  exploded)  between  the  devise  of  a  chattel, 
after  which,  it  was  said,  there  could  be  no  limitation,  and 
of  the  use  of  a  chattel,  after  which  a  limitation  was  pos- 
sible. The  court  adopted  this  distinction.  According  to 
Fitzgibbon,  they  were  "unanimous  that  the  limitation  over 
was  void,  as  the  absolute  ownership  had  been  given  to" 
A.,  "  for  it  is  to  him  and  the  heirs  of  his  body,  and  the 
Company  are  to  have  no  more  than  he  shall  have  left  un- 
spent ;  and  therefore  he  had  a  power  to  dispose  of  the 
whole,  which  power  was  not  expressly  given  to  him,  but 
it  resulted  from  his  interest.  The  words  that  give  an 
estate-tail  in  the  land  must  transfer  the  entire  property  of 
the  personal  estate,  and  then  nothing  remains  to  be  given 
over."  The  ground  of  decision  is  brought  out  more  clearly 
in  Win.  Kelyng  (with  which  accords  2  Eq.  Cas.  Ab.  in 


FORFEITURE  FOR   ALIENATION.  59 

ma !■</.):   "In  regard  the  ownership  and  property  of  the 

personal  estate  was  vested  in"  A.,  "and  not  the  use  only  ; 
this  was  held  to  be  a  void  limitation  to  the  "  charity.  "  It 
is  giving  a  man  a  sum  of  money  to  spend,  and  limiting 
over  to  another  what  does  not  happen  to  be  spent."  To 
which  the  reporter  adds:  "And  so  note  a  difference  be- 
tween a  devise  of  chattels  real  and  personal;"  i.  e.  while 
an  executory  limitation  of  a  term  for  years  was  good,  a 
like  limitation  of  chattels  personal  was  not.  See  Flan- 
ders v.  Clark,  1  Ves.  Sr.  9 ;  2  Fearne,  C.  It.  (4th  ed.)  225, 
note  («)  by  Powell.  The  case  goes  distinctly  on  the  ground, 
that  the  property  in  question  was  chattels  personal ;  that 
there  was  a  difference  (on  which  no  one  would  rely  at  the 
present  day)  between  the  bequest  of  a  chattel  and  of  its 
use;  and  that  after  the  gift  of  a  chattel  personal  there 
could  be  no  executory  bequest  of  any  sort.  The  kind  of 
executory  bequest  did  not  determine  the  decision.  The 
case  forms  no  support  for  Ide  v.  Ide,  and  yet  that  case 
cites  no  other  authority.  [See  32  Am.  L.  Reg.  N.  S. 
1039-1041.] 

§  69.  The  doctrine  next  appears  four  years  later,  in 
New  York,  in  Jackson  v.  Bull,  10  Johns.  19.  There  land 
was  devised  to  A.  and  his  heirs,  but  in  case  A.  died  with- 
out issue,  the  property  he  died  possessed  of  was  to  go  to 
B.  The  Supreme  Court  of  New  York,  following  Ide  v.  Ide, 
and  professing  to  rest  on  Attorney-General  v.  Hall,  held, 
in  a  per  curiam  opinion,  that  the  gift  over  was  void.  They 
said,  "A  valid  executory  devise  of  real  or  personal  estate 
cannot  be  defeated  at  the  will  and  pleasure  of  the  first 
taker.  This  is  a  settled  principle."  And  therefore,  as  the 
first  taker  could  by  conveyance  defeat  the  devise  over,  such 
devise  over  was  invalid.     There  may  have  been  an  objec- 


60  RESTRAINTS   ON    ALIENATION. 

tion  to  this  devise,  as  it  made  the  gift  over  depend  on 
the  mode  of  alienation  [see,  however,  §§  5d  c— 56  e,  ante] ; 
but  the  notion  that  an  executory  devise  eould  not  be  made 
dependent  on  an  act  of  the  first  taker  was  a  singular  fal- 
lacy. When  the  books  and  judges  had  said  that  the  first 
taker  eould  not  defeat  an  executory  devise,  what  they 
meant  was  that  no  act  of  the  first  taker  eould  prevent  the 
contingent  event  designated  from  being  followed  by  the 
vesting  of  the  executory  devise  ;  but  they  never  meant  that 
the  executory  devise  was  bad  because  the  happening  of 
the  contingent  event  itself  was  in  the  control  of  the  first 
taker.  No  such  idea  had  ever  been  suggested  before ;  on 
the  contrary,  in  Beachcroft  v.  Broome,  4  T.  11.  441,  where 
a  devise  was  to  A.  and  his  heirs,  and  if  he  died  without 
having  issue,  or  without  settling  or  disposing  of  his  estate, 
then  over  to  B.,  and  A.  had  disposed  of  the  estate  in  his 
lifetime,  and  it  was  therefore  held  that  the  devise  to  B. 
could  not  take  effect,  Lord  Kenyon,  C.  J.,  said :  "  It 
seemed  to  me  as  if  the  parties  had  considered  that  a  ques- 
tion would  be  made,  Whether  this  were  or  were  not  an 
estate  tail  ?  If  it  had  turned  on  that  question,  I  should 
have  thought  it  extremely  clear  that,  on  failure  of  the  first 
limitation,  the  second  might  have  taken  effect  as  an  execu- 
tory devise."     [See  32  Am.  L.  Reg.  N.  S.  1037-] 

§  70.  In  Jackson  v.  Delancy,  13  Johns.  537,  552,  Kent, 
who  was  then  Chancellor,  spoke  of  the  decision  in  Jackson 
v.  Bull  with  approval.  See  16  Johns.  583.  In  Jackson 
v.  Robins,  15  Johns.  169,  a  testator  devised  his  real  and 
personal  estate  to  A.,  but  in  case  of  her  death  without  dis- 
posing of  it  by  will  or  otherwise,  then  to  B.  The  Supreme 
Court  followed  Jackson  v.  Bull,  and  held  that  A.  took  a 
fee,  and  the  devise  to  B.  was  void.     The  case  was  carried 


FORFEITURE  FOR  ALIENATION.  61 

to  the  Court  of  Appeals  {Jackson  v.  Robins,  16  Johns.  537), 
and  there  the  theory  that  a  devise  depending  on  a  eoiitin- 
gency  within  the  control  of  the  first  devisee  was  bad,  was 
vigorously  attacked,  and  the  fallacy  demonstrated,  by  the 
counsel  for  the  plaintiff.  See  pp.  5  10-5  15.  Chancellor 
Kent,  however,  came  to  the  rescue  (pp.  5}'>3-591).  He 
said  of  Attorney-General  v.  Hall  that  there  was  no  dis- 
tinction taken  between  realty  and  personalty,  whereas  the 
whole  argument  and  decision  of  that  ease  went  on  the 
distinction.  See  §  68,  ante.  He  said  of  Lord  Kenyon's 
dictum,  in  Beachcrqft  v.  Broome,  §  69,  ante,  that  "it  must 
have  been  in  loose  conversation  on  the  bench,"  and  that  lie 
apprehended  "  it  is  enough  merely  to  mention  such  a  dic- 
tum, and  then  to  pass  it  by  in  silence."  The  argument  for 
the  plaintiff,  it  is  submitted,  states  the  cases  more  correctly, 
and  argues  from  them  more  soundly,  than  the  opinion  of 
the  Chancellor.  The  court,  however,  were  unanimous  in 
affirming  the  judgment  below.  The  ease  was  followed  in 
New  York,  in  McDonald  v.  Waldgrove,  1  Sandf.  Ch.  274  ; 
[McLeans  v.  Macdonald,  2  Edm.  393 ;  and  see  Campbell 
v.  Beaumont,  91  N.  Y.  464;]  and  Chancellor  Kent  lays  it 
down  as  settled  law  in  his  Commentaries.  4  Kent,  Com. 
270.1  [In  Van  Home  v.  Campbell,  100  N.  Y.  287,  an 
unsuccessful  attempt  was  made  to  induce  the  Court  of 
Appeals  to  overrule  Jackson  v.  Robins;  the  court  held 
that  the  question  must  be  considered  as  closed  in  New 
York.  Ruger,  C.  J.,  dissented.  He  said :  "  It  is  now 
quite  generally  conceded  that  this  claim  cannot  be  sup- 

1  [In  Paterson  v.  Ellis,  11  Wend.  259,  299,  the  cases  of  Jackson  v.  Bull 
and  Jackson  v.  Robins  were  supposed  to  be  authorities  for  a  doctrine,  that 
after  the  bequest  of  a  chattel  (and  not  of  its  use  merely)  no  executory  gift 
over  is  good  ;  but  this  idea  was  corrected  in  Norris  v.  Beyea,  13  X.  Y 
273  ;   Tyson  v.  Blake,  22  N.  Y.  558.] 


62  RESTRAINTS  ON   ALIENATION. 

ported  upon  principle,  but  is  attempted  to  be  upheld  solely 
upon  the  ground  of  authority,  and  as  a  rule  of  property" 
(p.  313).  As  has  been  shown  (§  56  g,  ante),  the  courts  of 
New  York  have  now  laid  hold  of  a  provision  in  the  lie- 
vised  Statutes,  passed  probably  with  no  such  intent,  to  rid 
themselves  of  this  doctrine  which  Chancellor  Kent  fastened 
upon  them.1  See  also  Matter  of  Cager,  111  N.  Y.  343; 
Crazier  v.  Dray,  120  N.  Y.  3GG ;  Leggett  v.  Firth.  132 
N.  Y.  7. 

§  71.  In  Karkers  Appeal,  60  Pa.  141,  on  a  gift  to  A.  and 
his  heirs,  but,  if  he  should  die  intestate  and  without  issue, 
over,  it  was  held  that  A.  took  a  fee  simple,  and  the  gift 
over  was  bad,  although  the  peculiar  doctrine  of  Chancellor 
Kent,  that  an  executory  devise  is  bad  if  depending  on  a 
contingency  within  the  control  of  the  first  taker,  was  not 
relied  on.     [See  §§  56  c,  56  d,  ante.] 

§  71  a.  [In  Fisher  v.  Wlster,  154  Pa.  65,  a  testator  de- 
vised land  to  two  grandsons,  and  added :  "  I  hereby  forbid 
that  the  property  shall  be  sold  out  of  the  family,  but  leav- 
ing them  at  liberty  to  dispose  of  their  respective  parts  by 
will.  In  case  of  the  death  of  either  one  of  them  intestate 
without  direct  heirs,  I  direct  that  such  intestate  part  shall 
be  held  by  his  sister."  It  was  held  that  the  grandsons 
took  interests  free  from  the  gift  over  to  the  sister.  'Flic 
case  was  decided  upon  the  report  of  the  master,  who  rested 
the  case  on  Chancellor  Kent's  doctrine.  See  also  Gillmer 
v.  Daix,  141  Pa.  505;  Good  v.  Fichthorn,  144  Pa.  287. 
But  cf.  §§  56  c,  56  (/,  ante.'] 

l  [It  is  curious  to  observe  the  tone  in  which  they  now  speak  of  this 
doctrine:  "A  wholly  artificial  ami  technical  rule,  founded,  as  I  think, 
neither  upon  any  policy  or  sound  reasoning."  Per  Peckham,  J.,  in  Grey' 
stonv.  Clark-,  11  Hun,  125,  130.] 


FORFEITURE   FOR  ALIENATION.  G3 

§  72.  In  Homer  v.  Sin/ ton,  2  Met.  194,  200,  201,  tlte 
court  do  not  seem  firmly  persuaded  of  the  correctness  oi 
hie  v.  hie  and  Jackson  v.  Bull.  In  Hubbard  v.  Rawson, 
4  Gray,  242,  although  the  court  say  that  hie  v.  A/r,  5  Mass. 
500,  is  not  a  parallel  ease,  yet  the  principles  of  decision  in 
the  two  eases  serin  irreconcilable.  Land  was  devised  to  a 
trustee  in  trust  for  the  separate  use  of  L.,  a  married  woman, 
and  her  heirs,  to  pay  to  her  the  income,  and,  if  required, 
the  principal ;  if  she  survived  her  husband,  to  convey  the 
land  to  her  in  fee ;  if  she  made  any  disposition  by  will  or 
other  writing,  to  convey  the  property  to  such  persons  as 
she  named  ;  if  she  did  not  make  such  disposition,  then  to 
convey  it  to  her  children  as  if  she  had  died  intestate.  It 
was  held  that  L.'s  children  took  as  purchasers,  not  by  de- 
scent. Here  was  a  case  where  L.  took  an  equitable  fee 
simple  with  a  gift  over  if  she  did  not  dispose  of  it  by  her 
will  or  otherwise.  On  the  doctrines  of  either  Gulliver  v. 
Vaux,  or  Holmes  v.  Godson,  or  hie  v.  hie,  or  Jackson  v. 
Robins,  this  gift  over  was  bad,  and  yet  it  was  held  good. 
The  first  estate  was,  the  court  say  (p.  247),  "  an  equitable 
fee  simple  contingent,  liable  to  be  defeated  upon  her  dying 
before  her  husband,  in  case  the  estate  was  not  conveyed  by 
her  order,  and  she  had  made  no  disposition  of  the  property 
by  will  or  other  writing."  And  they  add,  "  It  was  compe- 
tent for  the  testator  to  make  the  devise  over."  The  court 
do  not  seem  to  have  perceived  how  far  they  were  deviating 
from  some  of  the  earlier  cases.  See  [Sears  v.  Russell,  8 
Gray,  86,  100;]  Gifford  v.  Choate,  100  Mass.  343;  Hale 
v.  Marsh,  Id.  468;  Perry  v.  Cross,  132  Mass.  454. 

§  7-2  a.  [But  in  Kelley  v.  Meins,  135  Mass.  231,  realty 
and  personalty  were  devised  to  A.  and  his  heirs,  but  if  he 
should  die  without  leaving  issue,  then  any  portion  which 


G4  RESTRAINTS   ON   ALIENATION. 

should  remain  was  to  go  over.  In  a  suit  to  recover  the 
land  devised  the  gift  over  was  held  repugnant.  It  should 
be  observed  that  there  was  no  power  to  dispose  of  the 
property  by  will.  In  Welsh  v.  Woodbury,  1 11  Mass.  542, 
there  was  held  to  be  a  life  estate  with  a  power.  The  court 
say :  "  The  ground  of  Kelley  v.  Meins  and  that  class  of 
east's,  whether  concerning  personal  or  real  estate,  is  that 
the  limitation  over  is  an  attempt  to  take  away  one  of  the 
incidents  of  ownership,  and  to  say  that,  if  the  owner  does 
not  dispose  of  his  property  in  his  life  or  at  his  death,  it- 
shall  devolve  otherwise  than  as  the  law  has  provided." 
Joslin  v.  Rhoades,\50  Mass.  301,  followed  Kelley  v.  Meins. 
Finally,  in  Foster  v.  Smith,  156  Mass.  3/9,  real  and  per- 
sonal estate  were  devised  to  A.,  but  if  she  did  not  dispose 
of  it  by  deed  or  will,  then  over,  and  it  was  held  that  the 
gift  over  was  bad.] 

§  J'A.  In  Andreivs  v.  Roye,  12  Rich.  53G,  there  was  a 
devise  of  real  and  personal  estate  to  A.  and  B.  equally, 
but  should  either  die  unmarried  and  without  issue,  then 
whatever  might  remain  of  his  moiety  to  the  survivor ;  but 
should  both  die  unmarried  and  intestate,  then  the  estate 
remaining  was  to  go  over.  Held,  in  an  action  for  breach 
of  a  contract  to  buy  the  estate  from  A.  and  B.,  that  their 
title  was  not  indefeasible.1  The  court,  struck  with  the  fact 
that  Chancellor  Kent's  theory  seemed  to  find  no  support  in 
the  older  books,  asked  a  reargumcnt,  and  came  to  the  con- 
clusion that  it  was  not  good  law.    But  in  Moore  v.  Sanders, 


1  [The  opinion  of  the  court  is  not  entirely  clear.  It  would  rather  seem 
as  if  they  thought  that  A.  and  I?,  took  life  estates  with  power  to  appoint 
hy  will  ;  ami  that,  if  they  did  have  a  fee,  it  was  intended  that  any  convey- 
ance by  deed  should  be  overridden  by  the  gift  over  on  intestacy  (pp.  545, 
546).     Both  these  propositions  seem  very  doubtful.    Of.  §§  50  c-56  e,  ante.] 


FORFEITURE   FOR    ALIENATION. 

15  S.  Car.  440,  a  gift  over  on  death  intestate  of  a  devisee 
uas  iichl  bad;  curiously  enough,  Andrews  v.  Royewas  not 
cited.     [In  Moure  v.  Sanders  the  gift  over  was  held  bad, 

because  in  rase  the  devisee  alienated  the  estate,  and  then 
died  intestate,  his  alienee  would,  if  the  gift  over  were  good, 
lose  his  estate  ;  and  the  gift  over  was  a  restraint  on  alien- 
ation. A  more  natural  construction  would  seem  to  have 
been  that  the  gift  over  was  not  intended  to  operate  if  the 
devisee  conveyed  in  his  lifetime.] 

§  74.  A  gift  over  after  a  devise  of  a  fee  simple,  in  case 
the  devisee  does  not  dispose  of  it  in  his  lifetime  or  by  his 
will,  has  therefore  been  often  held  void.  But,  considering 
the  variety  of  the  reasons  given  and  their  unsatisfactory 
character ;  and  also  the  contrary  cases  of  Doe  d.  Stevenson 
v.  Glover,  1  C.  B.  448;  Hubbard  v.  Rawson,  4  Gray,  242; 
and  Andrews  v.  Roye,  12  Rich.  536  ;  the  matter  certainly 
deserves  a  more  thorough  consideration  from  the  courts 
than  it  has  yet  received ;  and  if  the  contingency  of  not 
making  either  a  deed  or  a  will  is  an  illegal  basis  for  an 
executory  devise,  some  more  reasonable  ground  for  the 
proposition  than  those  usually  given  is  to  be  desired. 

§  74  a.  [The  doctrine  that  a  gift  over  on  the  failure  of 
a  devisee  to  dispose  of  land  either  in  his  lifetime  or  on  his 
death  is  void,  has  now  a  great  weight  of  authority  in  its 
favor.  Besides  the  Massachusetts,  New  York,  and  Penn- 
sylvania cases  cited  above,  §§  67-72  a,  ante,  the  same  doc- 
trine has  been  held  in  WoJfer  v.  Hemmer,  144  111.  .">.">  I  : 
Ball  v.  H/meock,  82  Ky.  107  ;  Combs  v.  Combs,  67  Md.  1 1  : 
Hoxsey  v.  Hoxsey,  37  N.  J.  Eq.  21.  See  also  Howard  v. 
Carusi,  MacA.  &  Mack.  260 ;  s.  c.  109  U.  S.  725  :  McRee 
v.  Means,  34  Ala.  349;  Jamison  v.  Craven,  4  Del.  Ch.  311 ; 
Milk  x.Xeivberry,  112  111.  123;   Wead  v.  Gray,  78  Mo. 

5 


66  RESTRAINTS   ON   ALIENATION. 

59 ;  Armstrong  v.  Kent,  1  Zabr.  500  ;  and  these  cases 
show  by  no  means  the  whole  part  that  this  doctrine  plays 
in  the  recent  books.  The  cases  in  which  gifts  over  if  the 
owner  of  property  docs  not  convey  in  his  lifetime  have 
been  held  bad  (§§  56-56  (/,  ante),  and  the  cases  of  per- 
sonal property  (§£  58,  62,  65,  ante),  though  sustainable  on 
other  grounds,  have  in  the  vast  majority  of  instances  been 
based  on  the  doctrine  under  discussion,  and  in  the  Ameri- 
can cases  the  reason  generally  given  is  that  put  forth  by 
Chancellor  Kent  in  Jackson  v.  Bull  and  Jackson  v.  Kobins, 
§§  69,  70,  ante.] 

§  74  b.  [The  establishment  of  this  doctrine  is  an  inter- 
esting instance  of  what  naturalists  call  a  reversion  to  a 
primitive  type.  In  the  barbarous  stages  of  law,  courts 
thwart  the  intention  of  parties  to  transactions  by  rules  and 
restrictions  which  are  not  based  on  considerations  of  public 
advantage,  but  are  formal,  arbitrary,  and  often  of  a  quasi 
sacred  character.  The  process  of  civilization  consists  in 
the  courts  endeavoring  more  and  more  to  carry  out  the 
intentions  of  the  parties  or  restraining  them  only  by  rules 
which  have  their  reason  for  existence  in  considerations  of 
public  policy.  There  are  some  of  the  old  rules  whose  vi- 
tality has  proved  too  strong  to  be  dealt  with  by  the  courts 
and  which  have  to  await  the  hand  of  the  Legislature,— 
such,  for  instance,  as  the  Rule  in  Shelley's  Case;  but  for 
the  courts  to  invent  a  new  rule,  not  called  for  by  any  con- 
siderations of  public  policy,  for  the  purpose  of  thwarting 
the  intentions  of  parties,  is  unusual  at  the  present  time; 
but  such  a  case  we  have  here.] 

§  7-1  c.  [A.  gives  a  piece  of  land  to  B.  and  his  heirs, 
and  says,  "You  may  do  with  this  just  as  you  please,  in  life 
or  by  will,  but  if  you  do  not  part  with  it,  and  do  not  de- 


FORFEITURE  FOR  ALIENATION".  67 

vise  it,  it  shall  go  to  C."  This  gift  to  C.  is  bad.  Why? 
What  arc  the  reasons  given?  They  are,  First,  that  the 
gift  over  is  repugnant;  Second,  that  the  passage  of  a  fee 
simple  on  death  of  the  tenant  intestate  to  the  heirs  is  a 
necessary  incident  of  the  estate;  Third,  that  an  executory 
devise  contingent  upon  a  circumstance  which  it  is  in  the 
power  of  the  first  taker  to  prevent  happening  is  void.  The 
first  is  the  reason  originally  given  ;  the  second  is  the  reason 
given  by  Fry,  J.,  in  Shaw  v.  Ford  ;  the  third  is  Chancellor 
Kent's.  .But  these  are  only  words.  They  merely  mean 
that  the  courts  have  set  up  a  certain  rule,  and  that  the 
proposed  provision  is  inconsistent  with  it ;  but  why  that 
rule  should  be  set  up,  what  interests  are  forwarded  by  it, 
how  it  helps  the  well-being,  moral  or  material,  of  the  com- 
munity, the  courts  never  show,  and,  to  do  them  justice, 
never  attempt  to  show.  In  the  hundreds  of  pages  in  the 
reports  on  this  subject,  there  is  no  suggestion  that  this  rule 
tends  to  promote  any  good  object.] 

§  74  d.  [It  is  to  be  observed  that  the  rule  is  not  a  rule 
of  construction,  it  is  not  a  rule  to  carry  out  the  intention 
of  the  parties,  but  its  avowed  purpose  is  to  defeat  that  in- 
tention. The  courts  always  recognize  this  fact;  and  that 
no  considerations  of  public  policy  are  involved,  is  shown 
by  its  being  perfectly  easy  to  carry  out  the  desired  result 
by  a  slight  change  of  phrase.  If  you  give  a  man  a  fee 
simple,  you  cannot  provide  that  if  he  does  not  sell  or  de- 
vise it  it  shall  go  to  T.,  but  if  you  give  him  a  life  estate 
with  power  to  appoint  by  deed  or  will,  and  in  default  of 
appointment  to  T.,  the  gift  to  T.  is  perfectly  good.  In 
botli  eases  the  intention  is  clear  and  undisputed;  when  you 
defeat  the  intention  in  one  case,  you  are  defeating  exactly 
the  intention  that  is  preserved  in  the  other.] 


68  RESTRAINTS  ON   ALIENATION. 

8  74  e.  [It  is  often  a  question  of  the  greatest  difficulty 
to  determine  whether  a  testator  has  given  a  devisee  a  life 
estate  with  general  power  of  appointment,  or  whether  he 
has  given  him  a  fee  with  an  executory  devise  over  in  ease 
the  first  taker  shall  not  dispose  of  his  interest.  If  it  were 
not  for  this  rule,  that  question  would  almost  never  become 
material.  But  now  that  a  testator's  intention,  if  expressed 
in  one  form,  cannot  be  carried  out,  while  it  can  be,  if  ex- 
pressed in  another,  the  question  becomes  of  vital  impor- 
tance, and  consequently  this  arbitrary  rule  is  responsible 
for  an  enormous  amount  of  litigation.1] 

§  71/.  [The  peculiarity  of  this  doctrine  is  its  modern 
origin.  It  makes  its  first  appearance  in  Ide  v.  Ide,  5  Mass. 
500,  in  1809,  when  it  was  founded  upon  a  misunderstanding 
of  the  case  of  Attorney-General  v.  Hall,  Fitzg.  314.  No 
judge  has  ever  given  a  rational  reason  for  its  existence,  and 
several  judges,  e.  g.  Lord  Truro,  C,  in  Watkins  v.  Williams, 
3  Macn.  &  G.  622, 629  ;  Fry,  J.,  in  Shaw  v.  Ford,  7  Ch.  D. 
669,  673  ;  Parker,  C.  J.,  in  Eaton  v.  Straw,  18  N.  H.  320, 
331,  have  spoken  of  it  with  thinly  veiled  contempt.  In 
many  States,  as  the  above  cited  cases  show,  the  doctrine 
has  become  a  rule  of  property,  and  is  past  help  by  the 
courts  ;  but  in  those  jurisdictions  where  it  has  not  already 
taken  root,  it  would  seem  to  deserve  consideration  whether 
this  pseudo-archaic  and  vexatious  doctrine  should  be  al- 

1  [A  few  of  the  cases  in  which  the  decision  of  this  question  has  heen  at- 
tended with  great  doubt  and  difficulty,  but  which  have  not  generally  heen 
mentioned  in  the  text,  because  the  conclusion  of  the  court  was  that  a  life 
estate  with  powers  and  not  a  fee  simple  was  granted,  are  :  Stuart  v.  Walker, 
72  Me.  145  ;  Copcland  y.  Barron,  Id.  206  ;  Welsh  v.  Woodbury,  144  Mass. 
642  ;  ( %asi  v.  Ladd,  153  Mass.  126  ;  Kent  v.  Morrison,  Id.  137  ;  Burleigh 
v.  Clounh,  52  N.  H.  267  ;  Kent  v.  Armstrong,  2  Halst.  Ch.  637  ;  Crozier  v. 
Bray,  120  N.  Y.  366  ;  Rose  v.  Hatch,  125  N.  Y.  427  ;  Taylor  v.  Ball,  158 
Pa.  651.] 


FORFEITURE   FOR  ALIENATION.  09 

lowed  to  establish  itself.  Sec  on  this  subject  ;i  valuable 
note  by  Edward  Brooks,  Jr.,  Esq.,  to  the  ease  of  Fisher  v. 
Wister,  32  Am.  L.  Keg.  N.  S.1035.] 

§  7-i  (J-  [A  real  objection  to  allowing  a  lull  power  of 
disposal,  and  at  the  same  time  a  gift  over  upon  failure  to 
dispose,  does  not  seem  to  have  been  discussed.  It  is  that 
if  a  creditor  should  take  such  an  estate  in  fee  of  his  debtor 
on  execution,  and  the  debtor  should  die  intestate,  the  pur- 
chaser at  the  execution  sale  would  lose  the  land.  But  this 
is  nothing  more  than  would  happen  if  the  debtor  had  a  life 
estate  with  power  to  appoint  by  deed  or  will,  and  had  died 
intestate.  Probably  the  best  way  would  be  to  consider 
such  a  gift  over  as  void,  on  just  grounds  of  public  policy, 
as  against  sales  on  execution,  or,  in  better  shape,  to  make 
the  transfer  inter  vivos  which  defeats  the  gift  over  extend 
to  an  involuntary  transfer.] 

B. 

ESTATES   TAIL. 

§  75.  [A  condition  against  alienation  annexed  to  a  gift 
to  a  man  and  the  heirs  of  his  body  made  prior  to  the  Stat- 
ute of  Westra.  II.,  13  Edw.  I.  c.  1,  l)e  Donis,  was  invalid. 
Per  Vavasour,  J.,  13  Hen.  VII.  24.  But  since  that  stat- 
ute] a  condition  against  alienation  attached  to  an  estate 
tail  is  effectual  and  can  be  enforced  if  the  tenant  in  tail 
makes  a  feoffment  or  levies  a  fine  at  common  law.  For 
such  act  is  unlawful,  a  fine  of  an  estate  tail  being  expressly 
declared  void  by  the  St.  De  Donis,  ^  t.  [13  Hen.  VII. 
22-24.]  Anon.,  Jenk.  242,  243.  Crocker  v.  Trevithin, 
Cro.  El.  35  ;  s.  c.  1  Leon.  292.  [So  a  clause  of  cesser 
upon  alienation  of  an  estate  tail  is  good.]     Newis  v.  Lark, 


70  RESTRAINTS  ON   ALIENATION. 

Plowd.  403,  408  ;  s.  c.  Benl.  19G.  Sharington  v.  Minors, 
Moore,  543.1  See  [21  Hen.  VI.  3,  pi.  21  ;  8  Hen.  VII. 
10,  i)l.  3;]  Jermine  v.  Arscot,  4  Leon.  83;  s.  c.  Moore, 
364;  1  And.  186;  Arton  v.  Hare,  Poph.  97;  Anon.,  1 
Brownl.  45  ;  Chomley  v.  Humble,  Cro.  El.  379 ;  Foy  v. 
Hynde,  Cro.  Jac.  697;  [Lit.  §  362;  Doct.  &  St.,  Dial.  II. 
c.  35. J  2  So  a  condition  or  limitation  attached  to  a  gift  in 
tail,  that  the  donee  shall  not  make  a  lease  for  years  is  valid. 
Spittle  v.  Davie,  2  Leon.  38;  s.  c.  Moore,  271.  [But  it 
is  said  that  a  condition  that  a  tenant  in  tail  shall  not  lease 
fur  the  term  of  his  own  life  is  bad.  Mildmays  Case,  6  Co. 
40  a,  42  I,  43  a ;  but  to  this  last  Co.  Lit.  223  b  is  contra. 
See  Re  Rosher,  26  Ch.  D.  801,  818.J 

§  76.  It  was  held  in  Pierce  v.  Win,  1  Vent.  321,  s.  c. 
Pollexf.  435,  that  a  condition  to  attempt  to  alien  an  estate 
tail  was  void  for  uncertainty,  and  therefore  no  entry  could 
be  had  by  the  grantor  on  one  to  whom  the  tenant  in  tail 
had  made  a  feoffment,  although,  if  the  condition  had  been 
against  aliening,  the  grantor  could  have  entered  upon  the 
feoffee,  and  see  Mildmays  Case,  6  Co.  40  a  ;  Foy  v.  Hynde, 
Cro.  Jac.  697.  But  it  is  doubtful  how  far  this  is  law  at 
present. 

1  [The  statement  in  Mary  Portingtons  Case,  10  Co.  35  6,  42  a,  that 
Newis  v.  Lark  was  overruled  in  the  Queen's  Bench,  appears  to  be  incorrect. 
See  Sharington  v.  Minors,  ubi  supra;  Bateman  v.  Allen,  Cro.  El.  437; 
Plowd.  408,  marginal  note.] 

2  Whether  in  the  cases  cited  in  the  text  the  fines  levied  were  really 
common-law  tines  (see  Mary  Portingtons  Case,  ubi  supra),  or  whether  the 
distinction  between  fines  levied  at  common  law  and  fines  levied  under  the 
Sts.  of  4  Hen.  VII.  c.  24,  and  32  Hen.  VIII.  c.  36,  was  not  then  plainly 
recognized,  is  not  clear.  The  distinction  certainly  seems  to  have  been  over- 
looked in  Rudhall  v.  Mil  ward,  Moore,  212;  s.  c.  1  Leon.  298;  Sav.  76; 
Fearne,  C.  R.  259.  There  has  been  no  question  in  modern  times  that  fines 
levied  in  accordance  with  those  statutes  stand  on  the  same  footing  as  com- 
mon recoveries.     Vide,  §  77,  post. 


FORFEITURE  FOR  ALIENATION.  71 

§  77-  An  estate  tail  is  barred,  and  all  conditions  or  con- 
ditional limitations  attached  to  it  are  destroyed,  by  a  com- 
mon recovery  or  by  a  fine  levied  in  accordance  with  the 
Sts.  of  4  lien.  VII.  c.  24,  and  32  Hen.  VIII.  c.  30,  and  the 
right  to  suffer  such  recovery  or  levy  sucli  fine  cannot  be  re- 
strained by  any  condition.  Co.  Lit.  223  b,  224  a.  Corbet's 
Case,  1  Co.  83  6;  s.  c.  Moore,  G01 ;  2  And.  134.  Mild- 
mays  Case,  6  Co.  40  a;  s.  c.  sub  nam.  Mildmay  v.  Mild- 
may,  Moore,  632.  Sunday  s  Case,  9  Co.  12/6.  DawJrinsv. 
Penrhyn,  6  Ch.  Div.  318 ;  s.  c.  4  Ap.  Cas.  51.  See  King 
v.  Burchell,  Amb.  3/9.  And  the  condition  fails  not  merely 
for  the  technical  reason  that,  by  the  barring  of  the  estate 
tail,  the  condition  is  gone  with  it,  but  because  the  law  does 
not 'permit  the  alienation  of  an  estate  tail  by  a  recovery  to 
be  restrained.  Therefore,  a  condition  that  the  donee  shall 
not  agree  to  suffer  a  recovery,  or  do  any  act  towards  it,  is 
void.  Mary  Portingtoris  Case,  10  Co.  35  b.  \_$ta)isbuvij 
v.  Hubner,  /3  Md.  228.  Re  Colliton  and  Landergan,  15 
Ont.  4/1.]  See  Taylor  v.  Shaw,  Carter,  6,  22;  Collins  v. 
Plummer,  1  P.  Wins.  104  ;  s.  c.  2  Vern.  635  ;  Mainwaring 
v.  Baxter,  5  Ves.  458.  Compare  Taylor  d.  Atfajns  v. 
Horde,  1  Burr.  60,  84;  Fearnc,  C.  R.  257  etseqq.;  Co. 
Lit.  223  b,  Butler's  note  ;  Lewis,  Perp.,  c.  4,  pp.  44  et  seqq.; 
[2  Jarm.  Wills  (5th  ed.),  860  ;]  Tudor,  L.  C.  on  Real  Prop. 
(3d  ed.)  463, 972.  [In  Poole  s  Case,  cited  in  Tatton  v.  Mol 
lineux,  Moore,  809,  810,  on  a  gift  in  tail  an  obligation  was 
entered  into  by  the  donee  that  he  would  not  alienate.  The 
Court  of  Chancery,  with  the  advice  of  Coke,  C.  J.,  ordered 
the  obligation  cancelled.  But  in  the  First  Institute,  Lord 
Coke,  after  saying  that  on  a  feoffment  in  fee  a  condition 
not  to  alienate  is  void,  adds,  "  But  if  the  feoffee  be  bound 
in  a  bond,  that  the  feoffee  or  his  heirs  shall  not  alien,  this 


72  RESTRAINTS   OX   ALIENATION. 

is  good,  for  lie  may  notwithstanding  alien  if  he  will  forfeit 
his  bond  that  he  himself  hath  made."  Co.  Lit.  20G  b.  But 
he  cites  no  authority  for  this  statement.  In  Freeman  v. 
Freeman,  2  Vera.  233  ;  s.  c.  Free.  Ch.  28,  a  father  settled 
land  upon  his  son  in  tail,  and  took  a  bond  from  him  not  to 
dock  the  entail.  The  son  suffered  a  common  recovery,  and 
the  bond  was  put  in  suit.  A  bill  in  equity  to  be  relieved 
against  the  bond  was  dismissed,  and  see  Collins  v.  Plum- 
mer,  ubl  supra.  On  the  other  hand,  in  Jervis  v.  Bruton,  2 
Vera.  251,  Poole  s  Case  is  referred  to  with  approval.  Sem- 
ble,  Poole  s  Case  is  better  law.] 


C. 

ESTATES   FOR   LIFE. 

§  78.  A  provision  in  the  gift  of  a  life  estate  or  interest 
that  the  estate  or  interest  shall  [cease  or  shall]  go  over  to 
a  third  person  upon  alienation,  voluntary  or  involuntary,  of 
the  life  estate  or  interest,  is  good.  This  seems  to  have  been 
first  held  in  1733,  in  Loekyer  v.  Savage,  2  Stra.  947,  (where 
it  was  placed  on  the  analogy  of  conditions  against  alienation 
in  leases  for  years,)  and  is  now  thoroughly  settled.  Among 
the  cases  in  which  such  gifts  over  [or  provisos  for  cesser] 
have  been  held  good  are  [Dommett  v.  Bedford,  6  T.  II.  684  ;] 
Shee  v.  Hale,  13  Ves.  404;  [Wilkinson  v.  Wilkinson,  3 
Swanst.  515;]  Cooper  v.Wyatt,  5  Madd.  482;  [Stephens 
v.  James,  4  Sim.  499;  Lewes  v.  Lewes,  6  Sim.  304;] 
Marl  in  v.  Margham,  14  Sim.  230;  Rochford  v.  Hackmaii, 
9  Hare,  475 ;  Brandon  v.  Aston,  2  Y.  &  C.  C.  C.  24 ;  Be 
Edgington's  Trusts,  3  Drew.  202;  Manning  v.  Chambers, 
1  DeG.  &  Sm.  282 ;  Carter  v.  Carter,  3  K.  &  J.  617 ;  Bar- 


FORFEITURE  FOR  ALIENATION.  73 

nett  v.  Blake,  2  Dr.  cv.  Sm.  117;  Re  Muggeridge's  Trusts, 
H.  R.  V.  Johns.  625;  Sharp  v.  Cosserat,  20  Beav.  470; 
Haswell  v.  Haswell,  28  Beav.  26;  Dorsett  v.  Dorsett,  30 
Beav.  256;  Tmrnsnnl  v.  Early,  34  Beav.  23;  Freeman  v. 
Bowen,  35  Beav.  17;  Montefiore  v.  Behrens,  Id.  95;  O/cZ- 
Aam  \.  Oldham,  L.  R.  .'{  Eq.  404  ;  /?ojf«^  v.  Z?ew*,  Id.  750; 
Ctowefl  v.  />Y<"///,  L.  R.  4  Eq.  209;  s.  o.  4  Ch.  296;  [ifc 
Parnham's  Trusts,  L.  It.  13  Eq.  413;]  /tV  Amherst's  Trusts, 
Id.  464  ;  Billson  v.  Crofts,  L.  R.  15  Eq.  314  ;  [A'e  Ayhcin's 
Trusts,  L.  R.  16  Eq.  585 ;]  /fte  i?«r^  Eyston,  7  Ch.  Div. 
145:  [Burst  v.  Hurst,  21  Ch.  Div.  278;  Nixon  v.  Verry, 
29  Ch.  D.  196  ;  /?e  Lm/'s-  2Ws,  30  Ch.  D.  119 ;  i?o6e/^- 
sow  v.  Richardson^  Id.  623  ;  ife  Bullock,  60  L.  J.  N.  S.  Ch. 
341  ;  s.  c.  64  L.  T.  N.  S.  736  ;  39  W.  R.  472  ;  Metcalfe  v. 
Metcalfe,  43  Ch.  D.  633 ;  s.  c.  [1891]  3  Ch.  1 ;]  Caulfield 
v.  Maguire,  5  Ir.  Ch.  78  ;  [i?e  Moore  s  Estate,  17  Ir.  L.  R. 
549 ;]  Nichols  v.  Eaton,  91  U.  S.  716 ;  Bramhall  v.  Ferris, 
14  X.  Y.  41  ;  iiWr?/  v.  Van  Syckel,  2  C.  E.  Green,  564; 
[Waldo  v.  Cummings,  45  111.  421 ;  Gfamp  v.  Cleary,  76  Va. 
140;  Z*m//  v.  Kentucky  Bank,  90  Ky.  452;  iVm  v.  FFtn- 
terburn,  6  Ohio,  C.  C.  635.  See  Conger  v.  Lowe,  124  Ind. 
368.]  There  are  also  many  cases  in  which  it  has  been  held, 
on  the  construction  of  a  will  or  other  instrument,  that  no 
gift  over  of  a  life  interest  was  intended  upon  the  events 
that  have  happened,  but  in  which  the  legality  of  such  gift 
over  lias  been  always  assumed.  A  gift  to  be  defeated  by 
alienation  need  not  take  the  form  of  a  gift  till  alienation, 
but  may  be  an  out  and  out  gift  with  a  proviso  for  going 
over  on  alienation,  as  in  the  leading  ease  Lockyer  v  Savage, 
2  Stra.  947.  [See  Wilkinson  v.  Wilkinson,  3  Swanst.  515, 
522;]  2  Jarra.  Wills  (5th  ed.),  870,  note  s;  13  Jur. 
pt.  2,  206. 


74  RESTRAINTS  OX    ALIENATION. 

§  78  a.  [In  Weale  v.  Ollive,  32  Bcav.  421,  a  testator 
gave  property  to  trustees  to  pay  the  income  to  T.  for  life, 
"  but  he  shall  have  no  power  to  sell  or  mortgage  this  life 
interest  to  any  other  person,  and  in  case  of  so  doing  he 
shall  forfeit  his  interest  from  the  said  funds,"  and  they  to 
go  over.  Sir  John  Romilly,  M.  R.,  decided  that  on  the 
whole  will  T.  took  an  absolute  and  not  a  life  interest,  but 
lie  said  that  the  declaration  quoted  was  "  wholly  void." 
"  The  testator  might  have  given  the  income  of  the  property 
to  "  T.  "  until  he  became  bankrupt  or  insolvent,  and  then 
have  given  it  over  to  another  person ;  but  it  was  not  com- 
petent to  him  to  give  a  life  estate,  and  then  to  say  he  should 
not  dispose  of  it."  And  in  Powell  v.  Boyyis,  35  Beav.  535, 
he  used  similar  language.  His  meaning  is  not  clear,  but 
if  he  meant  that  a  gift  of  income  to  A.  until  he  dies  or  as- 
signs, and  then  to  B.,  is  good,  but  that  a  gift  of  income  to 
A.  for  life,  but,  if  he  assigns  it,  then  to  B.,  is  bad,  the  state- 
ment is  not  law.  Both  gifts  are  good.  Lockyer  v.  Savage, 
Dommett  v.  Bedford,  Wilkinson  v.  Wilkinson,  Cooper  v. 
Wyatt,  itbi  supra,  and  many  of  the  other  cases  cited  in  the 
preceding  section.] 

§  70.  It  has  been  sometimes  said,  that,  though  a  limita- 
tion over  of  a  life  estate  on  alienation  is  good,  a  condi- 
tion without  a  gift  over  is  not.  Thus,  in  1  Roper,  Leg. 
(4th  ed.)  78G  :  "  Tt  is  presumed  that,  if  a  legacy  were  given 
to  A.  for  life,  with  a  proviso  for  its  determination  if  A.  made 
any  disposition  of  his  life  interest,  the  condition  would  be 
repugnant  and  void,"  citing  Brandon  v.  Robinson,  18  Ves. 
420  ;  s.  c.  1  Rose,  10/.  And  again  Vicc-Chanccllor  Wood, 
in  Stroud  v.  Norman,  Kay,  313,  330,  says  :  "The  difference 
between  a  mere  condition  to  devest  a  gift  and  a  limitation 
over,  will  occur  to  every  one.     In  no  case  is  it  more  appar- 


FORFEITURE   FOR   ALIENATION'.  75 

ent  than  in  a  limitation  of  property  to  A.  for  life,  with  a 
declaration  that  in  the  event  of  his  bankruptcy  it  should 
cease,  or  that  he  should  have  no  power  of  assigning  it,  as 
in  Brandon  v.  Robinson.  In  such  a  case  the  condition  is 
void,  and  the  disposition  of  the  property  is  absolute." 

§  80.  But  Vice-Chancellor  Turner  in  Rochford  v.  Hack- 
man,  9  Hare,  475,  has  shown  that  Lord  Eldon,  in  Brandon 
v.  Robinson,  meant  to  say  that  a  life  interest  could  not 
continue  to  exist  without  its  incidents,  and  did  not  mean 
to  deny  that  it  could  be  determined  by  a  condition  or  sim- 
ple proviso  of  cesser ;  and  Vice-Chancellor  Wood  has  ap- 
proved the  remarks  in  Rochford  v.  Hackman,  and  lias 
himself  decided  that  a  provision  that  a  life  estate  should 
cease  upon  alienation  is  good  without  a  gift  over.  Joel  v. 
Mills,  3  K.  &  J.  458.  Pearson  v.  Dolman,  L.  R.  3  Eq. 
315,  320.  [So  Ex  parte  Eyston,  7  Ch.  Div.  145  ;  Hurst  v. 
Hurst,  21  Ch.  Div.  278,  283.]  And  the  point  had  been  so 
decided  in  the  earlier  case  at  law  of  Dommett  v.  Bedford, 
6  T.  R.  684.  See  also  Shee  v.  Hale,  13  Ves.  404  ;  2  Jarm. 
Wills  (5th  ed.),  877;  Tudor  L.  C.  on  Real  Prop.  (3d  ed.) 
982.  No  doubt  need  now  be  felt  that  a  life  estate  may 
be  terminable  by  a  condition  against  alienation,  as  well  as 
by  a  limitation. 

§  81.  In  Jackson  v.  Groat,  7  Cow.  285,  there  was  a 
condition  in  a  lease  for  life,  that  the  lessee  should  not  sell 
his  interest,  without  offering  it  to  the  lessor,  nor  without 
paying  him  a  tenth  of  the  price.  It  was  held  that  the  con- 
dition was  good.  And  sec  Jackson  v.  Sihemail,  15  Johns. 
278  ;  and  Livingston  v.  Stickles,  7  Hill,  253. 

§  82.  In  re  Wolstenholme,  43  L.  T.  N.  S.  752,  s.  c.  29 
W.  R.  414,  there  was  a  devise  in  trust  for  A.  during  his  life, 
and  on  his  death  as  he  should  by  deed  or  will  appoint,  and, 


76  RESTRAINTS  OX   ALIENATION. 

in  default  of  appointment,  to  his  children;  but  if  the  in- 
come  should,  from  any  cause  whatever,  cease  to  be  payable 
to  him  as  an  inalienable  provision,  then  the  gift  over  should 
take  effect  as  if  A.  were  dead.  Malins,  V.  C,  held  that  the 
clause  of  forfeiture  was  void.  A.,  by  exercising  the  power 
by  deed,  would  be  at  once  possessed  of  the  whole  equitable 
interest,  and  the  restraint  against  alienation  would  be  sub- 
stantially like  a  restraint  on  the  alienation  of  a  fee  simple. 
See  Bradley  v.  Peixoto,  3  Ves.  Jr.  324. 

§  82  a.  [The  doctrine  of  lie  Wolstenholme  was  carried 
farther,  and,  it  is  submitted,  too  far  in  Bland  v.  Bland,  90 
Kv.  100.  A  testatrix  gave  the  residue  of  her  estate  to  a 
trustee  in  trust  that  her  brothers  E.  and  J.  should  each 
annually  (or  oftener  at  the  trustee's  discretion)  receive 
from  the  trust  the  income  of  the  estate,  each  one  half; 
that  the  interest  of  neither  should  be,  in  any  manner,  di- 
rectly or  indirectly,  liable  for  his  debts;  and  she  declared 
that  if  by  any  legal  proceedings  against  the  trustee  or  her 
brothers,  or  either  of  them,  the  income  "  shall  be  attempted 
to  be  subjected  to  the  debts  "  of  either  of  her  brothers,  then 
the  income  which  it  was  sought  so  to  subject  should  be 
added  to  the  fund.  She  further  declared  that  if  either  E. 
or  J.  should  die  unmarried  and  childless,  then  the  other 
should  have  the  whole  income  during  his  life,  "  but  the  one 
so  dying  first  may,  by  will,  devise  one  half  of  the  principal 
to  whom  lie  soever  desires,  but  such  devise  not  to  take  effect 
until  the  death  of  the  surviving  brother,"  and  the  survivor 
might  dispose  of  the  other  half  by  will ;  but  if  either  died 
intestate,  then  over.  The  court  held  that  the  power  to 
dispose  of  the  property  by  will  made  the  provision  for  for- 
feiture invalid,  and  that  the  judgment  creditor  of  one  of 
the  brothers  could  maintain  a  bill  in  equity  to  have  his 


FORFEITURE   FOR  ALIENATION.  77 

debt  paid  out  of  the  fund.  This  seems  very  questionable, 
and  what  is  still  more  doubtful,  it  appears  that  the  court 
allowed  the  creditor  to  sell  the  principal  of  the  fuud  to 
satisfy  his  debt  against  the  life  tenant.] 

§  83.  The  right  of  an  annuitant  in  certain  cases  to  have 
the  value  of  the  annuity  paid  to  him  outright,  has  raised 
curious  questions  when  the  annuity  is  made  terminable  on 
assignment  or  bankruptcy.  If  a  testator  bequeaths  an  an- 
nuity out  of  his  estate,  or  dies  leaving  his  estate  charged 
with  an  annuity,  the  annuitant  is  not  entitled  to  be  paid 
the  value  of  the  annuity  as  a  gross  sum.  Yates  v.  Yates, 
28  Beav.  637.  But  if  the  testator  directs  a  certain  sum 
to  be  laid  out  in  an  annuity,  or  an  annuity  of  a  certain 
amount  to  be  purchased,  as  the  annuitant  could  at  once 
sell  the  annuity,  he  is  entitled  to  the  value  of  it  instead ; 
and  if  he  dies  before  the  annuity  is  purchased,  his  execu- 
tors are  entitled  to  the  value.  Yates  v.  Compton,  2  P.  Wins. 
308.  Barnes  v.  Rowley,  3  Ves.  Jr.  305.  Palmer  v.  Crau- 
furd,  3  Swanst.  482.  Dawson  v.  Hearn,  1  Russ.  &  M.  606. 
Ford  v.  Batley,  17  Beav.  303;  2  W.  &  T.  L.  C.  in  Eq. 
(5th  ed.)  257-  And  this  although  the  will  expressly  di- 
rects that  the  annuitant  shall  not  have  the  value  of  the 
annuity  in  an  outright  sum.  Stokes  v.  Cheek,  28  Beav.  620. 
[Roper  v.  Roper,  3  Ch.  D.  714,  721.] 

§  84.  So  when,  after  a  life  interest  given  to  A.,  a  cer- 
tain sum  was  to  be  laid  out  in  the  purchase  of  an  annuity 
for  B.,  and  B.  died  before  A.,  Sir  William  Grant,  M.  R., 
held  that  B.'s  representative  was  entitled  to  the  sum.  Bay- 
ley  v.  Bishop,  9  Yes.  6. 

§  85.  And  the  annuitant  (not  being  a  married  woman) 
is  not  deprived  of  the  right  to  have  the  value  of  the  annu- 
ity paid  to  him  because  the  will  contains  a  clause  forbidding 


73  RESTRAINTS   ON   ALIENATION. 

him  from  anticipating  it,  it  there  is  no  provision  of  cesser  or 
gift  over.  Woodmeston  v.  Walker,  2  Russ.  &  M.  197.  Be 
Brownes  Will,  27  Beav.  324.    Day  v.  Day,  22  L.  J.  Ch. 

878,  880,  881 ;  s.  c.  17  Jur.  580.  And  see  §§  134  et  seqq., 
post. 

§  85  a.  [But  in  those  jurisdictions,  e.  g.  Massachusetts 
and  Pennsylvania,  where  spendthrift  trusts  are  allowed,  it 
would  Been)  that  under  a  will  containing  such  a  clause  the 
annuitant  would  not  be  entitled  to  have  payment  made  to 
him  or  her,  and,  not  having  an  immediate  right  to  the 
money,  it  would  also  seem  that  in  case  of  the  annuitant's 
death  before  the  purchase  of  the  annuity,  his  or  her  ex- 
ecutor would  take  nothing.  See,  however,  the  following 
sections.] 

§  80.  What,  then,  are  the  rights  of  the  annuitant,  when 
there  is  a  gift  over  of  the  annuity  upon  bankruptcy  or  alien- 
ation? In  Day  v.  Day,  22  L.  J.  Ch.  878;  s.  c.  17  Jur. 
580  ;  badly  reported  in  1  Drew.  509,  property  was  given  to 
trustees  in  trust  to  pay  the  income  to  A.  for  life,  and  on 
her  death  to  sell  it  and  invest  the  proceeds  in  an  annuity 
for  the  life  of  B.,  and  to  pay  it  to  B.  until  he  should  assign 
it  or  become  bankrupt,  and  on  such  assignment  or  bank- 
ruptcy to  pay  it  to  C.  B.  died  in  the  lifetime  of  A.,  never 
having  assigned  the  annuity  or  having  become  bankrupt. 
Kindersley,  V.  C,  held,  that,  as  B.  had  never  assigned  the 
annuity  or  become  bankrupt,  C.  had  no  claim  ;  that  B.  was 
entitled  to  the  annuity,  subject  to  a  contingency  ;  and  that, 
as  the  contingency  could  now  never  happen,  B.'s  represent- 
atives were  entitled,  on  the  authority  of  Bayley  v.  Bishop, 
9  Yes.  0,  §  84,  ante,  to  have  the  property  transferred  to 
them.  The  Vice-Chancellor  said  that,  had  B.  assigned 
his  interest  or  become  bankrupt  in  the  lifetime  of  A., 


FORFEITURE  FOR  ALIENATION.  79 

C.  would  have  been  entitled  to  the  property.  22  L.  J. 
Ch.  881. 

§  87.  In  Power  v.  Hayne,  L.  R.  8  Eq.  262,  precisely  the 
same  question  as  arose  in  Day  v.  Day,  came  before  Malins, 
V.  C,  and  he  decided  it  precisely  to  the  contrary,  and  held 
that  neither  B.'s  representative  nor  C.  was  entitled.  [The 
decision  in  Day  v.  Day  seems  to  be  the  logical  consequence 
of  Bayley  v.  Bishop,  §  84,  ante,  where  the  test  applied  was 
whether  the  legacy  for  an  annuity  was  subject  to  a  condi- 
tion precedent  or  not.  Postponement  to  a  life  estate  was 
held,  in  accordance  with  the  general  rule,  not  to  be  a  con- 
dition precedent,  and  the  gift  over  upon  assignment  or 
bankruptcy  was  a  condition  subsequent  and  not  precedent. 
If  Bayley  v.  Bishop,  therefore,  is  law,  Day  v.  Day  seems 
correct.  But  as  an  original  matter,  the  decision  in  Bayley 
v.  Bishop  is  very  questionable.  The  option  of  the  annui- 
tant is  not  to  have  cash  at  once,  but  to  have  at  the  termi- 
nation of  the  life  estate  so  much  cash  as  would  then  buy  an 
annuity,  which,  if  the  annuitant  dies  during  the  life  estate, 
is  nothing.  So  if  the  annuity  is  to  cease  or  go  over  on  the 
assignment  or  bankruptcy  of  the  annuitant,  his  interest  is  so 
uncertain  that  it  cannot  be  calculated  in  money,  and,  from 
this  point  of  view,  Power  v.  Hayne  is  right.  Power  v. 
Hayne  has  been  followed  by  Kekewich,  J.,  in  Re  Draper, 
57  L.  J.  N.  S.  Ch.  942.] 

§  88.  In  Hatton  v.  May,  3  Ch.  D.  148,  where  trustees 
were  directed  to  purchase  an  annuity  for  the  life  of  M.,  a 
single  woman,  and  to  pay  it  to  her  for  her  separate  use, 
(without  any  right  to  have  its  gross  value  paid  to  her,) 
until  she  should  assign  or  anticipate  it,  it  was  held  by  Ma- 
lins, V.  C,  that  M.  was  not  entitled  to  have  the  value  of 
the  annuity  paid  to  her,  but  that  the  trustees  must  hold  it 


80  RESTRAINTS  OX  ALIENATION. 

until  she  did  some  aet  of  alienation.  [See  Roper  v.  Roper, 
36  Ch.  1).  714,  721;]  2  Jann.  Wills  (5th  ed.),  878;  1 
Jarm.  Wills  (5th'  ed.),  868.  [A  fortiori  where  spend- 
thrift trusts  are  allowed.     See  §  85  a,  ante.'] 

§  89.   In  Hunt-Foulston  v.  Furber,  3  Ch.  I).  285,  a  tes- 
tator gave  £20,000  stoek  to  be  laid  out  by  trustees  in  the 
purchase  of  a  government  annuity  in  the  name  and  for  the 
benefit  of  J.  for  his  life,  and  directed  that,  if  J.  should  sell, 
mortgage,  pledge,  or  anticipate  his  annuity,  the  same  should 
cease  and  determiue,  and  form  part  of  the  testator's  resid- 
uary estate.     The  trustees  purchased  the  annuity,  and  J. 
contracted  to  sell  it  to  the  plaintiff.     Held,  by  Hall,  V.  C, 
that  the  proviso  was  void,  and  that  J.  could  transfer  a  good 
title  to  the  plaintiff.     The  decision  apparently  goes  upon 
the  distinction  that  the  annuity  was  taken  in  the  name  of 
the  annuitant,  and  not  of  the  trustees.     Otherwise  it  is  in- 
consistent with  Shee  v.  Hale,  13  Ves.  404,  and  Power  v. 
Hayne,  L.  R.  8  Eq.  262,  which  were  cited  by  counsel,  but 
which  the  Vice-Chancellor  said  had  "  very  little  bearing." 
But  the  distinction  is  of  questionable  validity.     Although 
the  annuity  for  the  life  of  J.  stands  in  his  name,  does  he 
not  hold  it  upon  trust  for  himself  until  alienation,  and  then 
in  trust  for  those  entitled  to  the  residue  ?     The  interposi- 
tion of  a  third  person  as  trustee  does  not  seem  to  vary  the 
principle.     The  right  to  receive  an  annuity  for  life  seems 
as  much  a  life  interest,  and  no  more  an  absolute  interest, 
than  a  legal  life  estate,  or  the  right  to  receive  from  trustees 
the  income  of  a  fund  for  lite.     The  two  latter  are  assign- 
able for  a  gross  sum,  as  much  as  is  the  former.     A  gift 
over  on  alienation  of  the  former  should  be  as  valid  as  on 
alienation  of  either  of  the  latter.     The  decision  in  Hunt- 
Foulston  v.  Furber  is,  however,  stated  as  if  sound  law  in 


FORFEITURE   FOR   ALIEXATIO^'.  81 

1  Jarm.  Wills  (5th  ed.),  368,  note  g;  2  Jarm.  Wills  (5th 
ed.),  879.  See  Tudor,  L.  C.  on  Real  Prop.  (3d  ed.)  974. 
[In  Be  Mabbett  [1891],  1  Ch.  707,  713,  Kekewich,  J., 
held  that  a  proviso  in  a  gift  of  an  annuity  that  on  any  as- 
signment of  the  annuity  it  should  cease  was  void.  lie  said  : 
"  A  proviso  such  as  I  find  in  this  will,  expressed  merely  in 
terrorem,  that  is  to  say,  without  any  gift  over,  is  not  allowed 
to  take  effect;"  and  he  quotes  the  language  of  Malins,  V.  C, 
in  Roper  v.  Roper,  3  Ch.  D.  714,  721  :  "A  declaration  that 
the  widow  shall  not  have  the  value  of  her  annuity,  that 
goes  for  nothing ;  but  in  order  to  prevent  her  having  the 
value  there  must  be  a  gift  over."  But  Malins,  V.  C,  did 
not,  it  is  submitted,  intend  to  say  that  a  proviso  for  cesser 
of  an  annuity  on  alienation  was  void  ;  but  that,  if  there  was 
neither  a  gift  over  nor  a  proviso  for  cesser,  a  direction  that 
the  annuitant  should  not  alienate  would  be  inoperative. 
Surely  the  absurd  doctrine  of  conditions  in  terrorem  ought 
not  to  be  extended  beyond  those  cases  (marriage  and  dis- 
puting a  will)  in  which  it  has  already  been  established. 
Considering  then  the  totally  different  grounds  on  which  it 
has  been  attempted  to  distinguish  Hiint-Foulston  v.  Furber 
and  Re  Mabbett  from  Hatton  v.  May,  ubi  supra,  and  the 
unsatisfactory  character  of  the  reasoning  by  which  it  has 
been  attempted  to  support  them,  it  is  submitted  they  ought 
to  have  followed  the  fate  of  Hatton  v.  May,  and  if  in  that 
case  the  value  of  the  annuity  was  properly  refused  to  the 
annuitant,  in  the  other  two  cases  the  proviso  for  terminat- 
ing the  annuity  should  have  been  held  good.  That  Hatton 
v.  May  is  right  cannot  be  positively  affirmed  in  the  face  of 
Day  v.  Day.  The  latter  case  does  not,  indeed,  directly 
contradict  the  former,  but  the  grounds  on  which  they  rest 
are  hardly  consistent.     On  principle  it  would  seem  that  a 

6 


82  RESTRAINTS  ON  ALIENATION. 

gift  over  or  proviso  of  cesser  upon  the  alienation  or  bank- 
ruptcy of  the  annuitant  is  valid,  and  suffices  to  prevent  the 
annuitant  or  his  representatives  from  being  entitled  to  the 
value  of  the  annuity  in  cash.] 

§  90.  Thus  far  we  have  seen  that  conditions  or  limita- 
tions against  or  on  alienation  may  be  attached  to  life  inter- 
ests given  to  others,  and  that  the  alienation  aimed  at  may 
be  either  voluntary,  as  by  sale,  or  involuntary,  as  by  bank- 
ruptcy. It  remains  to  consider  how  far  a  man  may  settle 
property  on  himself  for  life  to  go  over  on  his  alienation. 
We  will  take  up  first  involuntary  alienation  or  bankruptcy, 
and  afterwards  voluntary  alienation,  for  perhaps  there  is  a 
difference,  in  the  case  of  a  settlement  on  one's  self,  between 
voluntary  and  involuntary  alienation,  which  certainly  does 
not  exist  in  case  of  a  gift  to  others. 

§  91.  It  is  deemed  against  public  policy  to  allow  a  man 
to  settle  property  on  himself  until  his  death  or  bankruptcy, 
and  then  over ;  or  to  settle  a  life  interest  which  he  pos- 
sesses upon  himself  until  bankruptcy,  and  then  over;  in 
either  case,  upon  his  bankruptcy,  an  interest  for  his  life 
passes  to  his  assignees.  This  rule  must  not  be  confounded 
with  the  doctrine  that  a  man  cannot  make  a  voluntary  con- 
veyance in  fraud  of  his  creditors.  Sec  Murphy  v.  Abraham, 
15  Ir.  Ch.  371  ;  [Re  Pearson,  3  Ch.  D.  807].  This  present 
rule  goes  farther,  and  forbids  a  man,  even  for  good  consid- 
eration, to  make  a  grant  over  of  his  life  interest  contin- 
gent on  his  bankruptcy  as  a  condition  precedent.  If  he 
reserves  a  life  interest,  it  will  go  to  his  assignees  in  bank- 
ruptcy, despite  any  condition  or  limitation,  even  though  the 
gift  over  after  his  death  is  valid  because  made  on  good 
consideration,  e.  g.  on  marriage.      Tudor,  L.  C.  on  Real 


FORFEITURE   FOR   ALIENATION. 

Prop.  (3d  ed.)  982.  Indeed,  it  is  on  marriage  settlements 
tnat  most  of  the  eases  have  arisen.  Higinbotham  v.  Holme, 
19  Ves.  88.  Lester  v.  Garland,  5  Sim.  205.  Ex  parte 
Oxley,  1  Ball  &  B.  257.  See  Casey's  Trusts,  4  Ir.  Ch.  247 
(reversing  3  Ir.  Ch.  419)  ;  Clarke  v.  Chambers,  8  Ir.  Ch. 
26.1  [On  the  effect  of  coverture  upon  a  woman's  settle- 
ment of  her  own  property  upon  herself,  see  §  277  a,  post.'] 

§  92.  A  woman's  property  may,  however,  be  settled  on 
her  intended  husband  for  life  or  until  his  bankruptcy,  and 
so  property  in  which  she  has  an  equity  for  a  settlement. 
Montefiore  v.  Behrens,  35  Beav.  95  ;  s.  c.  L.  R.  1  Eq.  171. 
And  a  settlement  by  a  husband  of  his  property  on  himself 
until  he  becomes  bankrupt,  and  then  for  the  benefit  of  his 
wife,  (or  a  bond  payable  to  her  on  his  bankruptcy),  is  valid 
to  the  extent  of  the  property  he  has  received  from  her. 
Ex  parte  Cooke,  8  Ves.  353.  Ex  parte  Hlnton,  14  Ves. 
598.  Ex  parte  Hodgson,  19  Ves.  206.  Ex  parte  Young, 
3  Mad.  124;  s.  c.  Buck,  179.  Lester  v.  Garland,  5  Sim. 
205.  Ex  parte  Shute,  3  Deac.  &  Ch.  1.  Be  Meaghan,  1 
Sch.  &  L.  179.  Higginson  v.  Kelly,  1  Ball  &  B.  252.  Ex 
parte  Verner,  Id.  260.  Corr  v.  Corr,  3  Ir.  L.  R.  435. 
[Re  Callans  Estate,  7  L.  R.  Ir.  102.]  Tudor,  L.  C.  on  Real 
Prop.  (3d  ed.)  984. 

§  93.  Although  the  limitation  over  is  usually  for  the 
benefit  of  the  settlor's  wife  and  children,  other  limitations 
over  are  equally  void.    Thus  A.  settled  a  life  interest  which 

1  So  a  bond  payable  on  bankruptcy  to  trustees  for  a  wife  cannot  be  en- 
forced. Ex  parte  Hill,  1  Cooke,  Bkr.  Law,  228.  Ex  parte  Bennet,  Id. 
229.  And  a  bond  payable  on  bankruptcy  or  death  cannot  be  enforced  as 
due  on  bankruptcy.  In  re  Murphy,  1  Sch.  &  L.  44.  Ex  parte  Taaffe,  1 
Gl.  &  J.  110.  But  such  a  bond  can,  in  bankruptcy,  be  valued  as  a  debt 
payable  in  fviv.ro  (i.  e.  on  the  bankrupt's  death),  and  be  proved  on  such 
valuation.  Ex  parte  Boddam,  2  DeG.  F.  &  J.  625.  Tudor,  L.  G  on  Real 
Prop.  (3d  ed.)  983. 


84  RESTRAINTS  ON    ALIENATION. 

he  had  on  himself  until  he  became  bankrupt  or  insolvent, 
or  some  creditor  proceeded  against  the  fund,  and  then  for 
the  benefit  of  certain  specified  creditors.  A  creditor,  nut 
one  of  those  specified,  obtained  a  charging  order  against 
the  fund.  Held  that  the  limitation  over  was  void.  Synge 
v.  Synge,  4  lr.  Ch.  337.  See  s.  c.  in  the  court  below,  3 
Ir.  Ch.  262;  and  Ex  parte  Vere,  19  Ves.  93,  99,  uotc; 
s.  c.  1  Rose,  281. 

§  94.  It  has  been  held  that  the  interest  of  a  partner  in 
a  term  for  years  (and  scnible,  a  fortiori  in  a  life  estate) 
cannot  be  limited  over  to  his  copartners  upon  his  bank- 
ruptcy. Whitmore  v.  Mason,  2  J.  &  H.  204.  And  sec 
Wilson  v.  Greenwood,  1  Swanst.  471. 

§  95.  In  Synge  v.  Synge,  4  Ir.  Ch.  337,  stated  §  93,  ante, 
it  will  be  observed  that  the  limitation  over  which  was  de- 
clared void  was  not  on  bankruptcy,  but  on  a  proceeding  by 
a  single  creditor.  [But  in  Be  Detmold,  40  Ch.  I).  585,  A. 
in  his  marriage  settlement  settled  his  own  property  in  trust 
to  pay  the  income  to  himself  for  life,  or  until  he  should 
become  bankrupt,  or  assign  or  charge  the  income,  or  do 
or  suffer  something  whereby  the  same,  through  his  act,  or 
default,  or  by  operation  or  process  of  law,  would,  if  belong- 
ing absolutely  to  him,  become  vested  in  or  payable  to  some 
one  else,  and  then  in  trust  to  pay  to  his  wife  during  her  life. 
A  judgment  creditor  of  A.  proceeded  against  the  income, 
and  had  himself  appointed  receiver.  North,  J.,  held  that 
the  limitation  over  to  A.'s  wife  took  effect.  He  distin- 
guished the  cases  in  bankruptcy  on  the  ground  that  such  a 
settlement  was  in  fraud  of  the  bankrupt  act,  and  he  rested 
largely  upon  the  cases,  sec  §§  97,  98,  post,  in  which  it  had 
been  held  that  a  limitation  over  upon  voluntary  alienation 
was  good.     Even  assuming  that  the  cases  referred  to  were 


FORFEITURE  FOR   ALIENATION.  85 

rightly  decided,  it  hardly  seems  to  follow  that  a  limitation 
over  on  process  by  a  creditor  is  good.  To  allow  such  a  lim- 
itation seems  a  hindrance  to  creditors,  varying  only  in  degree 
from  a  limitation  over  in  case  of  bankruptcy.  Synge  v. 
Synge,  which  was  not  called  to  the  attention  of  the  learned 
judge  in  Re  Detmold,  seems  the  better  law.]  On  the  gen- 
eral question  of  provisions  to  take  effect  on  bankruptcy,  see 
Ex  parte  Mackay,  L.  R.  8  Ch.  643;  Ex  parte  Williams, 
7  Ch.  D.  138  ;  [Be  Blanshard,  8  Ch.  D.  601 ;  Re  Stockton 
Iron  Furnace  Co.,  10  Ch.  Div.  335;  Ex  parte  Jay,  14 
Ch.  Div.  19  ;  Ex  parte  Jackson,  Id.  725  ;  Ex  parte  Voiscij, 
21  Ch.  Div.  442;  Ex  parte  Barter,  26  Ch.  Div.  510;] 
Tudor,  L.  C.  on  Real  Prop.  (3d  ed.)  983.  As  upon  a  settle- 
ment of  a  man's  property  upon  himself  a  clause  of  forfeiture 
on  alienation  is  bad,  so,  a  fortiori,  upon  such  settlement  a 
clause  forbidding  alienation  is  bad,  even  where,  as  in  Mas- 
sachusetts, such  a  clause  is  good  in  a  settlement  upon  an- 
other. See  §§  268  a,  268  b,  post.  [On  restraint  upon 
alienation  in  settlements  upon  the  settlor  himself,  see 
also  §  277  a,  post.'] 

§  90.  Having  thus  seen  that  a  man  cannot  settle  his 
own  property  so  that  he  shall  enjoy  it  until  its  involuntary 
alienation  [or,  at  any  rate,  until  bankruptcy],  and  that  then 
it  shall  go  over,  it  remains  to  see  whether  he  can  settle  it 
upon  himself  till  he  voluntarily  alienates,  and  provide  that 
upon  such  voluntary  alienation  it  shall  go  over.  In  Phipps 
v.  Ennismore,  4  Russ.  131,  A.,  intending  to  marry  B.,  de- 
mised lands,  of  which  he  was  life  tenant,  to  trustees  for 
ninety-nine  years,  to  secure  the  payment  of  a  yearly  sum  of 
money  to  his  wife  as  pin-money,  and  limited  a  jointure  to 
her.  By  a  separate  deed,  executed  at  the  same  time,  he 
covenanted  not  to  sell  or  incumber  the  lands,  and  declared 


86  RESTRAINTS   ON   ALIENATION. 

that,  should  he  do  so,  the  trustees  were  to  apply  the  rents 
as  they  should  think  proper  for  the  maintenance  and  sup- 
port of  A.  or  his  wife  or  issue.  The  marriage  was  had, 
and  A.  incumbered  his  interest.  Lord  Lyndhurst,  C,  held 
that  the  gift  over  on  sale  or  incumbrance  was  void,  and 
the  incumbrance  was  good.  He  said  :  "  The  only  ques- 
tion which  admits  of  doubt  is,  Whether  the  provision  can 
be  sustained  against  the  incumbrancer,  so  far  as  regards 
the  application  of  the  rents  and  profits  to  the  mainte- 
nance of  the  wife  and  children  ?  It  was  admitted  on  all 
hands  that  the  parties  to  the  deed  did  not  contemplate  a 
fraud  ;  but  the  transaction  is,  in  its  very  nature,  fraudulent. 
Though  the  parties  had  no  fraud  in  view,  the  deeds  them- 
selves are  fraudulent.  If  the  tenant  for  life  procured  any 
person  to  advance  money  to  him  on  the  security  of  the 
property,  in  that  event,  and  in  that  event  only,  was  the 
instrument  in  question  to  have  operation.  In  point  of 
law,  the  deed  cannot  be  sustained."  (p.  141.)  The  coun- 
sel for  the  incumbrancer  put  the  matter  neatly :  "  Can  a 
man  be  allowed  to  covenant  that,  if  he  sells  his  estate,  the 
purchaser  shall  not  have  it,  but  it  shall  go  to  a  trustee, 
who  is  to  apply  the  rents  for  the  benefit  of  the  vendor 
and  his  family?" 

§  97.  In  Brooke  v.  Pearson,  27  Bcav.  181,  A.  by  mar- 
riage settlement  conveyed  real  estate  to  trustees  upon  trust 
to  pay  the  rents  to  himself  during  the  joint  lives  of  himself 
and  B.,  his  intended  wife,  until  he  should  sell  or  incumber 
the  same,  or  until  his  bankruptcy  or  insolvency,  and  after 
such  sale,  incumbering,  bankruptcy,  or  insolvency,  in  trust 
during  the  joint  lives  of  A.  and  B.  to  pay  £300  annually  to 
B.  for  her  separate  use,  and  the  residue  to  A.  The  mar- 
riage took  place  in  1854.     In  1855  A.  mortgaged  the  prop- 


FORFEITURE  FOR  ALIENATION.  87 

erty,  and  in  1858  was  adjudged  bankrupt-  B.  claimed 
that,  upon  the  execution  of  the  mortgage,  the  rent  charge 
arose  to  her ;  there  was  no  question  between  her  and  the 
mortgagee,  the  property  being  apparently  sufficient  for 
both,  but  the  assignees  in  bankruptcy  claimed  that  as  to 
them  the  rent  charge  was  invalid.  Lord  Romilly,  M.  R., 
held  that  the  rent  charge  arose  when  the  property  was 
mortgaged,  and  was  therefore  in  existence  at  the  time  of 
the  bankruptcy,  and  did  not  pass  to  the  assignees.  He 
said,  "  It  is  not  necessary  to  go  into  the  question  whether 
the  rent  charge  has  priority  over  the  mortgage,  because 
that  matter  is  arranged  between  the  parties."  No  cases 
are  referred  to  in  the  opinion,  although  Phipps  v.  Ennis- 
more,  ubi  supra,  was  cited  by  counsel.  There  is  no  reason 
in  public  policy  why  an  interest  limited  to  arise  on  a  con- 
veyance should  not  be  sustained  so  far  as  is  consistent  with 
the  conveyance.  So  in  this  case  there  was  no  objection 
to  the  rent  charge  arising  upon  the  life  tenant's  mortgag- 
ing the  property,  provided  the  rent  charge  was  subject  to 
the  mortgage ;  and  as  the  bankruptcy  found  the  rent  charge 
already  existing,  the  assignees  took  subject  to  it.  There 
is  nothing  in  the  decision  of  this  case  inconsistent  with 
Phipps  v.  Ennismore. 

§  98.  In  Knight  v.  Browne,  30  L.  J.  Ch.  649;  7  Jur. 
N.  S.  894 ;  Wood,  V.  C,  held  that  if  A.  by  his  marriage 
settlement  settles  property  to  the  use  of  himself  for  life 
until  he  incumbers  or  sells  it,  and  then  for  the  benefit  of 
his  wife,  for  her  separate  use,  the  gift  to  the  wife  takes 
effect  upon  a  mortgage  by  A.  of  his  interest.  He  attempted 
to  distinguish  Phipps  v.  Ennismore,  on  the  ground  that 
the  gift  over  was  contained  in  a  separate  deed,  though  no 
Buch  ground  is  taken  by  Lord  Lyndhurst  in  his  opinion, 


88  RESTRAINTS  OX  ALIENATION. 

and  lie  said  that  the  "  very  point  in  this  case  lias  been  dc- 
cided"  in  Brooke  v.  I'm/son;  but  this,  as  appears  by  the 
preceding  section,  was  not  so.  [The  case  of  Knight  v. 
Browne  lias  been  used  as  authority  lor  the  doctrine  that  a 
limitation  over  upon  a  creditor  taking  on  process  was  good, 
Re  Detmold,  40  Ch.  D.  585,  §  95,  ante;  but,  as  has  been 
said  loc.  fit.,  even  if  Knight  v.  Browne  be  good  law,  it  is 
in  truth  no  sufficient  justification  of  He  Detmold.~\ 

§  99.  A.  settled  his  property  on  himself  for  life,  or  until 
he  should  become  bankrupt  or  insolvent,  and  from  his  death, 
bankruptcy,  or  insolvency,  in  trust  for  his  wife  and  children. 
A.  became  unable  to  pay  his  debts,  and  assigned  all  his 
property  to  trustees  for  the  benefit  of  his  creditors.  It  was 
held  by  the  Lord  Chancellor  of  Ireland,  following  Phijyps 
v.  Ennismore,  and  reversing  the  decision  of  the  Master  of 
the  Rolls,  that  the  trust  for  A.'s  wife  and  children  was 
void  as  against  the  assignees  for  creditors.  Casey's  Trusts, 
3  Ir.  Ch.  419;  s.  c.  4  Ir.  Ch.  -217,  overruling  the  Court  of 
Common  Pleas  for  Ireland  in  Gill  v.  Morgan,  Smythc,  GO, 
and  Hall  v.  Cooper,  Id.  1G8.  [Casey's  Trusts  was  followed 
in  Clarke  v.  Chambers,  8  Ir.  Ch.  26.  See  Re  Callans  Es- 
tate, 7  L.  Pi.  Ir.  102.] 

§  100.  The  text-books  generally  assume  that  the  law  is 
settled  in  accordance  with  Knight  v.  Browne,  2  Jarm.  Wills 
(5th  ed. ),  878,  note  e;  Lcwin  on  Trusts  (9th  cd.),  108. 
But  there  is  no  greater  weight  of  authority  for  that  view 
than  for  the  opposite.  [The  case  is  not  so  strong  against 
purchasers  in  general,  as  against  creditors  in  general;  for 
purchasers  would  usually  have  actual  or  constructive  no- 
tice of  such  limitations  over  on  alienation,  or,  not  having 
such  notice,  would  not  be  bound  by  them,  at  least  where, 
as  in  the  United  States,  a  registry  system  prevails.     But 


\ 


FORFEITURE  FOR  ALIENATION.  89 

may  it  not  be  fairly  considered  contrary  to  public  policy  fur 
a  man  to  "  be  allowed  to  covenant  that  if  he  sells  his  es- 
tate the  purchaser  shall  not  have  it  ? "] 

D. 

ESTATES   FOR   YEARS. 

§  101.  [In  21  Hen.  VI.  33,  pi.  21,  it  was  moved  before 
the  judges  of  the  Common  Pleas  whether  a  condition  not 
to  alien  attached  to  a  lease  for  years  was  good,  and  three 
judges  against  one  held  it  good.  See  Stath.  Ab.  Condition, 
16  Hen.  VI.]  Since  that  time  the  validity  of  such  a  con- 
dition seems  to  have  been  assumed  [8  Hen.  VII.  10 ;  21 
Hen.  VII.  11 ;]  Dyer,  6,  45,  66,  79,  152;  and  there  is  no 
doubt  of  its  legality.  It  is  also  settled  that  the  forfeiture 
may  take  place  on  involuntary  alienation,  e.  g.  bankruptcy. 
Roe  v.  GaMiers,  2  T.  R.  133.  See  Doe  d.  Mitchinson  v. 
Carter,  8  T.  R.  57,  300.  A  condition  that  executors  should 
not  assign  was  held  valid  in  Roe  v.  Harrison,  2  T.  R.  425, 
but  such  a  condition  does  not  apply  to  executors  unless 
they  are  specially  mentioned,  Seers  v.  Mind,  1  Ves.  Jr.  294. 
There  are  numerous  cases  on  the  construction  of  conditions 
against  assignment,  viz.  to  what  persons  and  to  what  modes 
of  alienation  they  extend ;  but  these  cases  do  not  touch  the 
question  of  the  validity  of  the  conditions.1 

1  There  are  often  provisions  in  leases  for  years,  that  upon  default,  in 
some  matter,  of  the  lessee,  the  lease  shall  be  void.  Such  a  provision,  how- 
ever expressed,  will  be  construed  a  condition,  making  the  lease  voidable  at 
the  option  of  the  lessor,  and  not  a  limitation  making  it  absolutely  void. 
The  cases  have  generally  arisen  upon  default  in  payment  of  rent,  but  the 
same  rule  must  prevail  upon  breach  of  a  covenant  to  assign.  It  was  at  one 
time  supposed  that  the  rule  extended  only  so  far  as  to  prevent  the  lessee 
taking  advantage  of  his  own  wrong,  and  that  the  lessor  might  regard  the 


90  RESTRAINTS  ON  ALIENATION. 

§  102.  If  a  lessee  for  years  transfers  his  whole  interest, 
he  cannot  put  any  condition  against  alienation  in  the  as- 
signment. There  is  no  tenure  between  him  and  his  assignee. 
It  is  like  the  transfer  of  a  fee  simple  or  of  a  chattel  personal. 
C<>.  Lit.  223  a.     See  §  27,  ante. 

.  §  103.  In  Roe  v.  Galliers,  2  T.  R.  133,  140,  Mr.  Justice 
Buller,  speaking  of  a  condition  against  alienation  on  a  term 
for  years,  says,  "If  such  a  proviso  as  this  were  inserted  in 
very  long  leases,  it  would  be  tying  up  property  for  a  con- 
siderable length  of  time,  and  would  be  open  to  the  objec- 
tion of  creating  a  perpetuity."  See  4  Property  Lawyer, 
297,  298.  But  admitting  that  the  Rule  against  Perpetui- 
ties applies  to  conditions  at  all,  (which  is  not  generally 
conceded  in  America,)  the  interest  of  the  reversioner  is  a 
vested  interest,  and  therefore  not  within  the  rule.  [Cf. 
Pollock  v.  Booth,  Ir.  R.  9  Eq.  229,  GO/.]  This  seems, 
however,  an  eminently  fit  case  for  the  intervention  of  legis- 
lation. In  Alabama,  the  Code  (1807),  §  1581,  Rev.  Code 
(1876),  §  2190,  provides  that  "No  leasehold  estate  can  be 
created  for  a  longer  term  than  twenty  years." 

lease  as  void,  although  he  had  received  rent  after  the  breach,  which  would 
be  a  waiver  of  a  condition.  But  the  contrary  is  now  held.  Davenport  v. 
The  Queen,  3  Ap.  Cas.  115,  128-130.  And  see  Rede  v.  Farr,  6  M.  &  S. 
121 ;  Doe  d.  Bryan  v.  Bancks,  4  B.  &  Aid.  401  ;  Amsby  v.  Woodward,  6 
B.  &  C.  519,  523  ;  Roberts  v.  Davcy,  4  B.  &  Ad.  664  ;  Doe  d.  Nash  v.  Birch, 
1  M.  &  W.  4C2,  406,  408;  Bowser  v.  Colby,  1  Hare,  109,  128-132;  Jones  v. 
Carter,  15  M.  &  W.  718,  725  ;  Hughes  v.  Palmer,  19  C.  B.  N.  S.  393,  -In;, ; 
Attorney-General  of  Victoria  v.  Etlcrshank,  L.  R.  6  P.  C.  354,  368  ;  [James 
v.  Young,  27  Oh.  D.  652  ;1  1  Wms.  Saund.  287,  d,  note  u ;  1  Sin.  L.  C. 
(9th  ed.),  Dumpor's  Case,  54-57. 


RESTRAINTS  ON  ALIENATION.  91 


II. 

RESTRAINTS    ON    ALIENATION. 


§  104.  After  those  cases  in  which  attempts  have  been 
made  to  punish  alienation  by  forfeiture,  there  now  come 
the  cases  in  which,  by  obliging  the  holder  of  property  to 
keep  it  in  spite  of  his  own  wishes  or  those  of  his  creditors, 
it  is  sought,  not  to  punish,  but  to  prevent  alienation. 


A. 

ESTATES  IN   FEE   SIMPLE. 

§  105.  As  in  the  English  law  a  gift  over  upon  alienation 
by  tenant  in  fee  simple,  or  one  having  the  absolute  interest 
in  personalty,  is  void,  so  a  fortiori  any  provision  that  such 
tenant  or  owner  shall  be  seised  or  possessed  of  property  in 
spite  of  himself,  that  is,  any  provision  against  alienation, 
is  void.  [Hood  v.  Oglander,  34  Beav.  513.  Re  Bourkes 
Trusts,  27  L.  R.  Ir.  573.  See  O'Callaghan  v.  Swan,  13 
Vict.  L.  R.  6/6.  So  it  has  been  held  that  a  direction  ac- 
companying a  devise  in  fee  simple  not  to  sell  out  of  the 
family  is  invalid,  Attioater  v.  Athcater,  18  Beav.  330,  see 
§§  31  et  seqq.,  ante;  and  so  also  a  prohibition  not  to  sell 


92  RESTRAINTS  ON    ALIENATION. 

for  twenty  years  land  devised  in  fee  simple.  Renaud  v. 
Tourangeau,  L.  K.  2  P.  C.  4,  18,  see  §§  45  et  seqq.,  ante.] 
It  is  immaterial  whether  the  property  be  legal  or  equitable. 
And  when  the  fee  or  absolute  property  in  land  or  chattels 
is  given  to  A.,  and  there  is  a  direction  not  to  convey  to 
him  till  he  reaches  a  certain  age,  say  thirty,  but  no  other 
person  has  in  any  event  any  interest  either  in  the  principal 
or  income,  the  direction  to  postpone  is  disregarded,  and  A. 
is  entitled  to  a  conveyance  at  once.  He  has  an  indefeasi- 
ble fee  or  absolute  interest,  which  he  can  sell  or  mortgage, 
and  it  is  deemed  against  public  policy  to  deprive  an  adult 
sane  man  or  unmarried  woman  of  the  use  of  land  or  goods 
in  which  he  or  she  has  an  absolute  and  indefeasible  prop- 
erty. So  if  one  entitled  to  be  paid  the  rents  and  profits 
for  life,  as  cestui  que  trust,  purchases  the  reversion,  he  can 
call  on  the  trustees  for  a  conveyance  of  the  estate.  The 
cases  wrill  be  examined. 

§  10G.  Piercy  v.  Roberts,  1  Myl.  &  K.  4.  Bequest  to 
executors  of  £400  upon  trust,  to  pay,  apply,  and  dispose 
thereof,  and  of  the  interest  and  produce  thereof,  to  and  for 
the  sole  use  and  benefit  of  the  testator's  son  Thomas,  in 
such  smaller  or  larger  portions,  at  such  time  or  times,  im- 
mediate or  remote,  and  in  such  way  or  manner,  as  the 
executors  should  in  their  judgment  and  discretion  think 
best,  and  in  case  of  the  death  of  Thomas  before  the  whole 
of  the  £400,  and  the  interest  thereof,  should  have  been 
paid  or  applied  for  the  purposes  aforesaid,  then  the  unap- 
plied part  to  sink  into  the  residue.  Thomas  became  bank- 
rupt. It  was  held  by  Sir  John  Leach,  M.  R.,  that  Thomas's 
assignees  were  entitled  to  the  £400.  It  is  to  be  observed 
that  the  direction  that  the  unapplied  portion  should  sink 
into  the  residue  does  not  seem  to  have  been  regarded  as 


RESTRAINTS  ON"  ALIENATION.  93 

being  such  a  gift  over  as  entitled  the  residuary  legatee  to 
object  to  the  assignees  taking  the  fund.  Perhaps  such 
direction  was  deemed  inoperative  within  the  cases  in  §  58, 
ante.     See  In  re  Coe's  Trusts,  4  K.  &  J.  199.1 

§  106  a.  [Sadler  v.  Pratt,  5  Sim.  632.  Under  an 
exclusive  power  to  appoint  to  children,  at  such  ages  or 
times,  and  under  such  provisos  and  dispositions,  as  the 
donee  might  appoint,  the  donee  appointed  to  the  children, 
and  directed  that  they  should  receive  their  respective  shares 
at  the  age  of  twenty-five.  It  was  held  that  this  direction 
was  void.] 

§  107.  Jossehjn  v.  Josselyn,  9  Sim.  63.  Bequest  of 
residue  of  personalty  to  J.,  and  direction  to  executors  to 
put  it  out  on  security,  the  interest  to  be  put  out  in  like 
manner  so  as  to  accumulate,  and  the  principal  to  be  paid 
to  J.  when  he  reached  twenty-four.  There  was  a  gift  over 
in  case  J.  died  under  twenty-one.  Shadwell,  V.  C,  held 
that  on  reaching  twenty-one  J.  was  entitled  to  a  convey- 
ance of  the  property.  See  Jackson  v.  Majoribanks,  12 
Sim.  93. 

§  108.  Saunders  v.  Vautier,  4  Beav.  115;  s.  c.  Cr.  & 
Ph.  240.  Bequest  of  stock  to  trustees  on  trust  to  accu- 
mulate the  interest  and  dividends  until  V.  should  attain 

1  In  re  Landon's  Trusts,  40  L.  J.  Ch.  370.  A  testator  directed  his 
trustees  to  set  apart  £1000,  and  either  to  pay  the  same  to  his  son,  or  to 
apply  it  for  his  benefit,  or  to  invest  it  and  pay  or  apply  the  income  thereof 
"for  his  benefit,  or  otherwise  as  the  trustees  or  trustee  should,  in  their  or 
his  uncontrolled  discretion,  think  fit."  The  trustees  had  paid  the  money 
into  court  under  the  Trustees  Relief  Act.  The  son  became  bankrupt.  The 
assignees  presented  a  petition  for  payment  of  the  £1000  to  them.  The 
trustees  were  desirous  to  exercise  the  discretion  given  to  them  by  the  tes- 
tator. Lord  Romilly,  M.  R.,  ordered  the  money  paid  out  to  the  trustees, 
holding  that  they  had  not  lost  their  right  to  exercise  the  discretion.  Here 
the  trustees  had  a  discretion  to  give  the  income  away  from  the  sou. 


94  RESTRAINTS  OX  ALIENATION. 

twenty-five,  and  then  to  pay  the  principal  with  the  accu- 
mulations to  V.  Held  by  Lord  Langdale,  M.  R.,  and  on 
appeal  by  Lord  Cottenhani,  C,  that  V.  was  entitled  to 
have  the  stock  and  accumulations  transferred  to  him  on 
coining  of  age.  See  Curtis  v.  Lukin,  5  Beav.  147,  1  •").">, 
156. 

§  109.  Roche  v.  Bocke,  9  Beav.  66.  A  testator  ap- 
pointed his  son  residuary  legatee,  but  added,  "It  is  my 
especial  desire  that  the  residue  of  my  property  be  not 
delivered  over  to  him  until  the  completion  of  his  twenty- 
fifth  year."  Lord  Langdale,  M.  R.,  held  that  the  son  was 
entitled  to  have  the  residue  transferred  to  him  on  his 
reaching  twenty-one. 

§  109  a.  [Swaffield  v.  Orton,  1  DeG.  &  Sm.  326.  The 
residue  of  a  testator's  personal  estate  was  given  to  his 
grandchildren,  with  a  direction  that  during  the  life  of  their 
mother,  the  income  of  their  shares  should  accumulate  in 
the  hands  of  his  executors.  The  direction  was  held 
invalid.] 

§  109  b.  [Peard  v.  Kekewich,  15  Beav.  166.  A.  devised 
land  to  trustees  in  fee  in  trust  for  B.  for  life,  remainder  for 
such  of  B.'s  children  as  B.  should  appoint.  B.  by  will 
appointed  to  trustees  in  trust  for  his  son  C.  and  his  heirs, 
and  to  be  conveyed  and  assured  to  him  when  he  should 
attain  twenty-three.  He  directed  the  trustees  to  pay  cer- 
tain sums  for  the  maintenance  of  C,  and,  subject  thereto, 
directed  them  to  accumulate  the  rents  until  C.  or  his 
other  sons  should  first  attain  twenty-three,  and  then  to 
pay  over  the  accumulations  to  C.  or  such  other  sons  as 
should  first  live  to  attain  that  age.  C.  had  been  born  in 
A.'s  lifetime.  Sir  John  Komilly,  M.  II.,  held  the  direction 
to  accumulate  the  rents  until  C.  reached  twenty-three  to 


RESTRAINTS   ON   ALIENATION.  95 

be  valid.  It  does  not  seem  possible  to  support  this  decis- 
ion. C.  was  entitled  to  the  accumulations  (he  having  in 
fact  reached  twenty-one)  unless  the  other  sons  had  a  pos- 
sible interest  therein ;  but  they  had  no  such  interest,  for 
the  direction  to  pay  over  the  accumulations,  at  least  so  far 
as  they  were  concerned,  was  void  for  remoteness,  for  it 
does  not  appear  that  they  were  born  in  A.'s  lifetime.] 

§  110.  Re  Youngs  Settlement,  18  Beav.  199.  Devise 
of  realty  and  personalty  to  trustees  upon  trust,  among  other 
things,  to  sell  and  invest,  and  to  pay  one  third  to  the  tes- 
tator's daughter,  not  to  be  payable  till  twenty-five,  but  to 
be  vested  at  twenty-one.  Lord  Romilly,  M.  R.,  held  that 
the  daughter  was  entitled,  on  reaching  twenty-one,  to  have 
her  share  paid  to  her. 

§  111.  Gosling  v.  Gosling,  H.  R.  V.  Johns.  265.  A 
direction  that  no  devisee  should  be  put  in  possession  of 
the  testator's  estate,  or  enjoy  the  rents  or  profits  of  any 
property  left  by  him,  until  reaching  twenty-five,  the  rents 
and  profits  meantime  to  accumulate,  was  held  inoperative. 
Sir  W.  P.  Wood,  V.  C,  said  (p.  2/2)  :  "  The  principle  of 
this  court  has  always  been  to  recognize  the  right  of  all 
persons  who  attain  the  age  of  twenty-one  to  enter  upon 
the  absolute  use  and  enjoyment  of  the  property  given 
to  them  by  a  will,  notwithstanding  any  directions  by  the 
testator  to  the  effect  that  they  are  not  to  enjoy  it  until  a 
later  age  ;  unless,  during  the  interval,  the  property  is  given 
for  the  benefit  of  another.  If  the  property  is  once  theirs, 
it  is  useless  for  the  testator  to  attempt  to  impose  any  fetter 
upon  their  enjoyment  of  it  in  full,  so  soon  as  they  attain 
twenty-one.  And  upon  that  principle,  unless  there  is  in 
the  will,  or  in  some  codicil  to  it,  a  clear  indication  of  an 
intention  on  the  part  of  the  testator,  not  only  that  his 


96  RESTRAINTS   OX   ALIENATION. 

devisees  arc  not  to  have  the  enjoyment  of  the  property  he 
has  devised  to  them  until  they  attain  twenty-five,  but  that 
some  other  person  is  to  have  that  enjoyment,  —  or  unless 
the  property  is  so  clearly  taken  away  from  the  devisees  up 
to  the  time  of  their  attaining  twenty-live  as  to  induce  the 
court  to  hold  that,  as  to  the  previous  rents  and  profits, 
there  has  been  an  intestacy,  —  the  court  does  not  hesitate 
to  strike  out  of  the  will  any  direction  that  the  devisees 
shall  not  enjoy  it  in  full  until  they  attain  the  age  of  twenty- 
five  years." 

§  111  a.  [Coventry  v.  Coventry,  2  Dr.  &  Sm.  4/0.  A 
testator  devised  land  on  a  trust  to  accumulate  the  income 
until  1875,  and  directed  that  then  it  should  form  part  of 
his  residuary  estate.  This  residuary  estate  he  devised  to 
several  persons.  He  died  in  1863.  It  was  held  that  the 
residuary  legatees  were  entitled  to  their  shares  at  once, 
notwithstanding  the  accumulation  clause.] 

§  1116.  Be  Jacob's  117//,  29  Beav.  -102.  A  residue 
was  bequeathed  to  the  testator's  four  sons  equally,  the 
capital  not  to  be  divided  until  they  were  all  settled  in  life  ; 
the  interest  of  their  portions  alone  to  be  paid  after  they 
were  all  provided  for,  until  they  severally  became  thirty 
years  old,  when  the  capital  was  to  be  placed  at  their  dis- 
posal. Held,  that  each  son  was  entitled  to  his  share  of 
the  capital  on  reaching  twenty-one.  Sec  Pearson  v.  Dol- 
man, L.  R.  3  Eq.  315. 

§  112.  Magrath  v.  M airhead,  L.  R.  12  Eq.  491.  Prop- 
erty was  devised  to  a  daughter,  "to  be  settled  on  her  at 
marriage.''  The  daughter  reached  twenty-one,  and  was 
unmarried.  Held,  that  she  was  entitled  to  the  property. 
[See  also  Snow  v.  Poulden,  1  Keen,  180  ;  Hilton  v.  Hilton, 
L.  R.  14  Eq.  4G8,  475;  Talbot  v.  Jevers,  L.  R.  20  Eq. 


RESTRAINTS  OX  ALLEGATION.  07 

255  ;  Gott  v.  Nairne,  3  Ch.  D.  278  ;  Weatherall  v.  Thorn- 
burgh,  8  Ch.  Div.  261;  Re  Cameron,  26  Ch.  Div.  19; 
Re  Fitzgerald's  Settlement,  37  Ch.  Div.  18  ;  Re  Parry,  GO 
L.  T.  N.  S.  489;  Lazarus  v.  Lazarus,  14  Vict.  L.  R.  806.  n. ; 
Higginbotham  v.  Barrett,  15  Vict.  L.  R.  803 ;  Millers 
Trustees  v.  Miller,  18  R.  30 ;  Cuthbert,  &c,  31  Sc.  L. 
Rep.  575;  6  Jurid.  Rev.  181.1] 

§  112  a.  The  invalidity  of  provisions  postponing  the 
payment  of  the  principal  of  a  fund  in  which  a  devisee  has 
an  immediate  absolute  interest,  is  shown  by  the  numerous 
cases  in  which  such  postponement  beyond  the  limit  fixed 
by  the  Rule  against  Perpetuities  has  not  deprived  the  de- 
visee of  the  right  to  have  the  principal  paid  him,  if  he  has 
an  absolute  interest  in  the  fund  within  the  required  time ; 
or,  in  other  words,  the  devisee  is  considered  as  acquiring, 
within  the  required  limits,  all  the  rights  to  the  property, 
and  the  postponement  of  the  right  to  payment  of  the  prin- 
cipal is  deemed  void.  If  the  postponement  of  the  right  to 
the  principal  were  valid,  then  that  right  could  never  be 
enjoyed  by  the  devisee,  for  it  would  be  bad  for  remoteness. 
[The  cases  are  given,  Gray,  Rule  against  Perp.  §  121.  See 
also  Oddie  v.  Broivn,  4  DeG.  &  J.  179;  Re  Rerun's 
Trusts,  34  Ch.  D.  716.  Cf.  Gray,  Rule  against  Perp. 
§  638.] 

1  [In  Havelock  v.  Havelock,  17  Ch.  D.  807.  Malms,  V.  C,  allowed  accu- 
mulations to  be  broken  into  in  order  to  furnish  maintenance  to  infants  who 
were  only  contingently  entitled;  and  this  was  followed  in  Re  Collins,  32 
Ch.  D.  229  ;  and  Re  Higginbotham,  4  Vict.  L.  R.  Eq.  57.  But  in  the  like 
case  of  Re  Afford,  32  Ch.  D.  383,  maintenance  was  not  allowed.  And  see 
Re  Smeed,  54  L.  T.  N.  S.  929  ;  Re  Colgan,  19  Ch.  D.  305.  In  Kemmis  v. 
Kcmmis,  13  L.  R.  Ir.  372,  Havelock  v.  Havelock  was  disapproved  and  not 
followed  ;  and  this  decision  was  confirmed  on  appeal,  15  L.  R.  Ir.  90, 
where  the  earlier  authorities  are  collected  and  discussed.  The  Irish  case 
seems  to  be  the  sounder  law.     See  Lewin,  Trusts  (9th  ed.),  661.] 

7 


98  RESTRAINTS  ON  ALIENATION. 

§  112?;.  [In  England  advowsons  have  sometimes  been 
given  to  trustees  for  the  benefit  of  a  parish  or  to  appoint 
clergymen  of  particular  opinions.  A  sale  of  these  advow- 
sons would  be  a  breach  of  trust  on  the  part  of  the  trustees, 
as  there  are  no  definite  cestuis  que  trust  who  can  consent 
to  it.  They  are  therefore  inalienable.  Such  trusts  have, 
however,  been  held  good,  though  there  is  certainly  diffi- 
culty in  considering  them  as  charitable  (see  Lewis,  Perp. 
693-7<>8,  and  cases  there  cited),  and  it  would  seem  to  be 
only  as  charities  that  they  can  be  sustained.  Attorney- 
General  v.  Webster,  L.  R.  20  Eq.  48:3, 491.  Be  St.  Stephen, 
39  Ch.  D.  492,  504.  See  Carter  v.  Cropley,  8  DeG.  M. 
&  G.  080  ;  Gott  v.  Nairne,  3  Ch.  D.  278  ;  Marsden,  Perp. 
309-311;  Lewin,  Trusts  (9th  cd.),  8G,  87;  Gray,  Rule 
against  Perp.  §  627-] 

§  112  c.  [Whether  a  direction  to  accumulate  the  income 
of  a  fund  devoted  to  charity  is  entirely  void,  and  if  not  en- 
tirely void,  to  what  extent  it  can  be  sustained  is  not  clear. 
It  is,  of  course,  plain  that,  if  such  direction  be  void,  the 
only  result  will  be  that  the  income  will  be  immediately  ap- 
plicable for  charity  ;  the  heirs  or  next  of  kin  of  the  founder 
will  not  be  let  in,  Gray,  Rule  against  Perp.  §  078 ;  and 
as  no  one  is  interested  in  raising  adversely  to  the  charity 
the  question  of  the  invalidity  of  such  direction  to  accumu- 
late, the  point  is  not  likely  often  to  come  up.  In  Harbin 
v.  Masterman,  L.  R.  12  Eq.  559,  Sir  John  Wickens,  V.  C, 
held  that  such  direction  was  not  in  itself  void  in  the  ease 
of  a  charity,  and  his  decision  was  followed  in  Biddies  Ap- 
peal,  12  W.  N.  C.  (Pa.)  231,  reversing  s.  c.  sub  nom.  Der- 
byshire's Estate,  11  W.  N.  C.  (Pa.)  22.  See  Williston 
Seminary  v.  County  Commissioner*,  147  Mass.  427;  Cur- 
ran' s  Appeal,  4  Pennyp.  331  ;  Gray,  Rule  against  Perp. 


RESTRAINTS   ON    ALIENATION.  99 

§  679.  But  it  seems  hardly  consistent  with  any  sound 
view  of  publie  policy  to  allow  accumulations  for  charities 
to  go  on  without  limit.     And  sec  now  §  29G  c,  post.'} 

§  113.  Turning  now  to  the  American  authorities,  we 
find  the  law  as  well  settled  here  as  in  England,  that  any 
direction  that  a  legal  fee  or  a  legal  absolute  interest  in 
personalty  shall  be  inalienable,  or  free  from  debts,  is  void. 
Blackstone  Bank  v.  Davis,  21  Pick.  42.  [Murray  v. 
Green,  04  Cal.  363.  Turner  v.  Hallowell  Sav.  Inst.  76 
Me.  52/.  Gleason  v.  Fayerweather,  4  Gray,  348.  Lane 
v.  Lane,  8  Allen,  350.  Oxley  v.  Lane,  35  N.  Y.  340. 
Lovett  v.  Kingsland,  44  Barb.  560 ;  s.  c.  sub  nom.  Lovett 
v.  Gillender,  35  N.  Y.  617-  Williams  v.  Leech,  28  Pa.  89. 
Jauretche  v.  Proctor,  48  Pa.  466.  Kepplcs  Appeal,  53  Pa. 
211.  Conrows  Appeal,  3  Penny  p.  356.  Mclntyre  v. 
Mclntyre,  123  Pa.  329.  Carradine  v.  Carradine,  33 
Miss.  698.  Re  Traynor  &  Keith,  15  Ont.  469.  See  Pot- 
ter v.  Couch,  141  U.  S.  296,  317;  Todd  v.  Saivyer,  147 
Mass.  570 ;  Borland  v.  Borland,  2  Barb.  63,  81  ;  Phila- 
delphia v.  Girard,  45  Pa.  9,  27;  Coopers  Estate,  9  Pcnn. 
C.  C.  600;  s.  c.  28  W.  N.  C.  (Pa.)  134;  Jasper  v.  Max- 
well, 1  Dev.  Eq.  357;  Smith  v.  Bunwoody,  19  Ga.  237; 
Steib  v.  Whitehead,  111  111.  247,  251.  The  American  cases 
on  restraints  upon  alienation  limited  as  to  persons  or  as  to 
time  are  given  and  discussed  in  connection  with  the  cases 
on  conditions  upon  alienation  so  limited,  §§  40-44,  52-54, 
ante,  and  it  is  also  important  to  observe  that  in  almost  all 
the  cases  cited  in  the  present  section,  the  restraint  upon 
alienation,  which  it  was  attempted  to  impose,  did  not  ex- 
tend beyond  the  life  of  the  first  grantee  or  devisee.  Cf, 
however,  Hodgdon  v.  Clark,  84  Me.  314,  §  296  a,  post.'] 

§  1 14.    Equitable  fees  and  absolute  interests  can  be  alien- 


100  RESTRAINTS  ON   ALIENATION. 

ated,  and  by  proper  proceedings  can  be  subjected  to  tlie 
payment  of  debts,  like  legal  estates.  Thus,  if  property  is 
given  to  trustees  to  hold  for  A.  until  he  reaches  twenty-six, 
and  then  pay  it  to  him,  and  A.  becomes  bankrupt  before  he 
is  twenty-six,  his  assignee  in  bankruptcy  is  at  once  entitled 
to  the  property.  Sanford  v.  Lackland,  2  Dill.  6.  And 
if  property  is  given  to  trustees  for  the  use  and  support  of 
A.,  A.'s  interest  is  alienable  and  subject  to  his  debts. 
Sparhawk  v.  Cloon,  12.")  Mass.  263. 

§  114  a.  [A  testator  gave  property  to  his  nephews  and 
nieces,  the  nieces'  shares  to  be  held  in  trust  for  them  for 
twenty-five  years  from  his  death,  the  income  to  be  paid  to 
them,  and,  at  the  end  of  the  time,  the  capital  to  be  paid 
to  them,  with  gifts  over  in  case  of  their  death  before  the 
end  of  the  time.  The  court  held  that  the  gifts  over  were 
too  remote ;  it  was  then  urged  that  the  trust  should  be 
upheld  in  order  to  restrain  the  nieces  from  alienating  their 
interest  during  the  twenty-live  years.  But  the  court  said 
that  this  was  not  the  trust  created  by  the  testator,  and 
that  if  such  was  his  intention  it  could  not  be  carried  into 
effect.  "Having,  by  these  provisions  of  his  will,  so  far  as 
they  are  legal,  given  an  absolute  estate  to  his  nieces,  no 
other  person  having  any  interest  in  it,  a  restriction  upon 
their  power  of  alienation  is  inconsistent  and  repugnant,  and 
cannot  be  sustained."  Sears  v.  Putnam,  102  Mass.  5,  9. 
A  testator  directed  that  when  his  son  should  be  twenty-one 
years  old  $4,000  should  be  paid  to  him  annually,  when  he 
should  be  twenty-six  years  old,  $5,000  annually,  and  when 
he  should  be  thirty  years  old,  $10,000  annually.  The 
whole  of  the  residue  came  to  the  son  under  a  resulting 
trust.  The  court  said  it  could  not  be  doubted  that  the  son 
took  under  the  will  an  equitable  estate  which  he  might 


RESTRAINTS   OX   ALIENATION.  101 

alienate,  and  which  equity  would  apply  for  his  debts,  and 
it  ordered  the  principal  of  the  fund  which  had  been  set 
aside  to  meet  this  annuity  to  be  paid  to  him.  Sears  v. 
Choate,  146  Mass.  395.  A  proviso  attached  to  an  equi- 
table fee  that  it  should  not  be  alienated  as  long  as  A.  and 
his  heirs  owned  certain  other  land  is  bad.  Winsor  v. 
Mills,  157  Mass.  362.  See  also  Thorndike  v.  Loring,  15 
Gray,  391,  and  Fosdick  v.  Fosdick,  6  Allen,  41,  commented 
on  in  Gray,  Rule  against  Perp.  §  242.  In  Gerard  v. 
Buckley,  137  Mass.  475,  it  would  seem  that  only  a  ques- 
tion of  the  legal  title  was  involved.  See  also  Weatherhead 
v.  Stoddard,  58  Vt.  623,  630,  631.1] 

§  115.  So  provisions  that  equitable  interests  in  fee  shall 
not  be  liable  for  the  debts  of  the  cestuis  que  trust  are  inop- 
erative. Taylor  v.  Harwell,  65  Ala.  1.  Turley  v.  Massen- 
gill,  7  Lea,  353.  And  so  it  has  been  held  that  a  cestui  que 
trust  can  demand  a  conveyance  from  the  trustee  under  a 
will,  although  the  testator  has  directed  that  the  property 
shall  not  be  liable  for  the  cestui  que  trust's  debts.  Gray  v. 
Obea/r,  54  Ga.  231.  But  see  s.  c.  59  Ga.  675.  It  is  to  be 
specially  observed  that  even  in  Pennsylvania,  the  mother  of 
so-called  spendthrift  trusts,  that  is,  trusts  giving  inalien- 
able equitable  life  estates,  inalienable  equitable  fees  are  not 
allowed.  Thus,  where  there  was  a  devise  to  trustees  and 
their  heirs  in  trust  for  A.  and  his  heirs,  with  a  direction 
that  the  land  should  not  be  liable  to  be  sold  for  the  pay- 

1  [Procedure  by  garnishment,  or,  as  it  is  commonly  called  in  New  Eng- 
land, trustee  process,  is  not,  however,  an  appropriate  mode  of  reaching 
every  equitable  interest.  Carson  v.  Carson,  6  All.  397.  Banfield  v.  Wiggin, 
58  N.  H.  155.  Chase  v.  Currier,  63  N.  H.  90.  White  v.  WTiite,  30  Vt. 
338.  White  v.  Jenkins,  16  Mass.  62.  Hinckley  v.  Williams,  1  Cush.  490. 
Mcllvaine  v.  Lancaster,  42  Mo.  96.  Drake,  Attachm.  (7th  ed.)  §  454  & 
See  §§  171-173,  post.     Cf.  §§  124  c,  124/,  post.} 


102  RESTRAINTS  ON   ALIENATION. 

merit  of  any  of  A.'s  debts,  past  or  future,  it  was  held  that  A. 

was  entitled  to  a  conveyance  from  the  trustees.  Keysers 
Appeal,  57  Pa.  236.  [House  v.  Spear,  1  W.  N.  C.  (Pa.) 
34.     But  see  §§  1 24  a-\ 24  k,  post.] 

§  116.  Although  trustees  have  a  discretion  as  to  the 
time,  mode,  or  amounts  in  which  a  trust  fund  is  to  be  ap- 
plied for  the  cestui  que  trust,  yet  if  no  one  else  has  any 
interest  in  the  fund  it  can  be  taken  for  his  debts.  Thus, 
where  property  was  given  to  trustees  to  "  apply  the  pro- 
ceeds to  the  maintenance  of  A.,"  but  not  to  be  subject  to 
his  debts,  it  was  held  by  the  Supreme  Court  of  North  Car- 
olina, in  an  excellent  opinion,  that  a  judgment  creditor 
could  reach  the  property  on  a  bill  in  equity.  Mebane  v. 
Mebane,  4  Ired.  Eq.  131.  [A  testator  gave  bank  stock  to 
a  trustee  for  the  benefit  of  his  heirs,  and  directed  that  the 
trustee  should,  for  twenty  years,  receive  the  dividends  only, 
and  should  not  dispose  of  the  principal.  It  was  held  that 
the  adult  cestuis  que  trust  were  entitled  to  have  the  stock 
conveyed  to  them.  Turnage  v.  Greene,  2  Jones,  Eq.  63. 
In  view  of  these  cases,  but  slight  weight  can  be  attributed 
to  the  language  in  Battle  v.  Petway,  5  Ired.  576,  57B.  But 
sec  Monroe  v.  Trenholm,  1 12  N.  C.  634 ;  s.  c.  1 14  N.  C.  590 ; 
§  124  s,  post.  And  where  the  testator  had  directed  that 
the  residue  of  his  estate  should  be  appropriated  by  his  ex- 
ecutors to  the  relief  of  his  heirs,  "  if  they  at  any  time  shall 
need  pecuniary  assistance,"  on  the  request  of  the  heirs,  the 
executors,  who  made  no  objection,  were  directed  to  trans- 
fer the  residue  to  the  heirs.  Smith  v.  Harrington,  4  Allen, 
566.  The  court  say:  "The  principle  is  simply  this,  that 
where  property  is  given,  granted,  or  bequeathed  to  certain 
individuals  to  be  used,  appropriated,  and  applied  for  their 
benefit,  and  in  such  manner  that  no  other  person  or  per- 


RESTRAINTS  ON  ALIENATION.  103 

sons  have  or  can  have  any  interest  in  it,  they  thereby  be- 
come in  effect  the  absolute  owners  of  it,  and  may  exercise 
all  the  rights  belonging  to  them  in  that  relation."  J]  So 
where  property  was  given  to  one  Healy  in  trust  "  for  the 
benefit  of  my  son  Joshua,  and  to  be  paid  to  him  in  small 
sums,  for  the  support  of  himself  and  family,  or  otherwise, 
as  said  Healy  shall  decide,  or  for  a  home  to  be  kept  in 
trust  for  said  Joshua,"  it  was  held  by  the  Supreme  Court 
of  New  York  that  the  property  could  be  reached  by  judg- 
ment creditors,  the  provisions  of  the  New  York  statutes 
(see  §  281,  post)  as  to  the  inalienability  of  trust  estates  ap- 
plying only  to  life  interests.  Havens  v.  Healy,  15  Barb. 
296.  [But  as  the  New  York  Revised  Statutes,  Part  2, 
c.  1,  tit.  2,  art.  2,  §  63  provide  that  "no  person  benefi- 
cially interested  in  a  trust  for  the  receipt  of  the  rents  and 
profits  of  land  can  assign  or  in  any  maimer  dispose  of  such 
interest,"  and  as  the  courts  have  held  that  this  provision  is 
to  be  extended  to  personal  property,  §§  281,  286,  post,  an 
equitable  life  tenant  who  has  acquired  the  whole  interest 
cannot,  in  New  York,  demand  a  conveyance  from  the  trus- 
tee. Lent  v.  Howard,  89  N.  Y.  169.  See  Asche  v.  Asche, 
47  Hun,  285  ;  s.  c.  113  N.  Y.  232.]  So  where  a  testator 
directed  that  the  property  devised  to  his  children  should 
"  remain  in  the  hands  of  my  executors,  to  be  disposed  of 
as  they  may  think  best  for  them  and  their  heirs,"  it  was 
held  that  a  child  had  an  equitable  fee  which  was  subject 
to  his  debts.  Samuel  v.  Ellis,  12  B.  Monr.  4/9.  [Mar- 
shall v.  Rash,  87  Ky.  116.]  And  see  Taylor  v.  Harwell, 
65  Ala.  1. 

1  [In  the  previous  edition  reference  was  here  made  to  Daniels  v.  El- 
dredge,  125  Mass.  356,  but  on  re-examination  the  case  does  not  seem  to  be 
in  point.] 


104  RESTRAINTS   OX    ALIENATION". 

§  117.  In  Smith  v.  Moore,  37  Ala.  327,  money  was 
bequeathed  to  a  trustee  in  trust  for  the  testator's  son 
William,  *'  not  subject  to  any  debt  or  debts  he  may  have 
contracted,  but  for  his  comfort  and  support;  and  should 
he  depart  tins  life  before  receiving  the  same,  then,  and  in 
that  event,"  the  money  to  go  to  the  testator's  other  children. 
It  was  held  that  the  entire  sum  was  liable  for  William's 
debts.  The  court  seem  to  have  treated  the  limitation  over 
of  what  might  remain  as  void.     See  §  53,  ante. 

§  118.  In  Flournoy  v.  Johnson,  7  B.  Monr.  603,  there 
was  a  devise  in  trust  for  the  benefit  of  W.  and  his  family. 
It  was  held  that  W.'s  interest  could  be  reached  in  equity. 
Sec  §  204,  post.  For  the  method  to  be  adopted  for  distin- 
guishing the  share  of  A.  from  that  of  his  family,  see  p.  606, 
and  see  also  §  176,  note,  post.  See  further  Davidson  v. 
Kemper,  70  Ky.  5  ;  §  210,  post.  Although  Slode  v.  Patten, 
68  Me.  330,  is  demonstrably  erroneous,  except  on  the  suppo- 
sition that  the  court  thought  an  equitable  fee  inalienable, 
they  probably  had  no  such  idea.  See  14  Am.  Law  Rev.  237. 
Cf.  Pennsylvania  Co.  v.  Price,  7  Phil.  465.  [See  Gray, 
Rule  against  Perp.  §§  237,  237  a.]  The  case  of  Cooper  v. 
Cooper,  36  N.  J.  Eq.  121,  is  so  imperfectly  reported,  that 
it  is  impossible  to  tell  what  it  decided,  or  whether  the  de- 
fendant was  considered  as  having  an  equitable  fee  or  an 
equitable  life  estate. 

§  110.  Is  there  anything  in  the  American  reports  in 
conflict  with  this  great  consensus  of  authority  ?  There  are 
two  decisions,  J>nssel1  v.  Grinnell,  105  Mass.  425,  and 
Bhoads  v.  Rhoads,  43  111.  230,  and  remarks  in  two  other 
cas0s.       [See  now,  however,  §§  124a-124tt, post."] 

§  120.  In  Russell  v.  Grinnell,  a  testator  gave  $4,000  to 
trustees  to  be  held  by  them  in  trust  for  the  use  and  sup- 


RESTRAINTS  ON   ALIENATION.  105 

port  of  the  testator's  sister.  The  sister  was  married  at  the 
testator's  death,  but  her  husband  afterwards  died,  and  she 
brought  a  bill  to  have  the  legacy  paid  to  her.  As  appears 
from  the  briefs  on  file  in  the  Soeial  Law  Library  at  Bos- 
ton, the  counsel  for  the  trustees  contended  that  the  plain- 
tiff had  only  a  life  interest,  or  at  any  rate  that  the  residuary 
legatees  had  a  right  to  what  might  remain  undisposed  of  at 
her  death ;  they  evidently  thought  it  idle  to  contend  that 
an  absolute  interest,  in  which  no  other  person  was  inter- 
ested, could  be  detained  from  her.  The  counsel  for  the 
plaintiff  cited  none  of  the  cases,  English  or  American,  bear- 
ing on  the  real  poiut  in  question.  The  opinion  is  as  fol- 
lows:  "Chapman,  C.  J.  The  bequests  in  trust  gave 
large  discretionary  power  to  the  trustees.  They  might 
apply  not  only  the  income,  but  so  much  of  the  principal  as 
they  might  think  proper,  to  the  use  and  support  of  the 
cestui  que  trust,  and  they  were  not  limited  to  any  particu- 
lar methods  of  making  the  application.  In  the  exercise  of 
a  reasonable  discretion  they  had  power  to  terminate  the 
trust,  if  they  thought  proper ;  and  in  the  exercise  of  the 
same  discretion  they  may  continue  to  hold  the  property  not 
yet  expended.  They  do  not  seek  instructions  from  the 
court  as  to  their  duty,  and  the  plaintiffs  have  no  right  to 
do  so.  Bill  dismissed,  with  costs."  It  does  not  clearly 
appear  whether  the  court  thought  that  the  trustees  had  a 
discretion  to  keep  some  of  the  money  for  the  residuary 
legatees.  (See  Sparhawk  v.  Cloon,  125  Mass.  263,  and 
§  240  a,  post.)  Even  if  the  sister  had  an  absolute  interest, 
it  is  conceived  that  this  ease,  argued  and  decided,  as  it 
was,  without  the  consideration  of  the  authorities,  cannot 
weigh  against  the  contrary  decisions.  [But  see,  now, 
Claflin  v.  Claflin,  149  Mass.  19,  §§  124  1-124  p,  j)ost.] 


106  RESTRAINTS   ON   ALIENATION. 

§  121.  liut  even  if  a  trustee  can  assert  his  discretion 
against  a  cestui  que  trust,  who  has  the  entire  equitable 
interest,  it  would  be  going  a  step  farther  to  say  that  he 
can  assert  it  against  the  creditor  of  such  cestui  que  trust. 
There  is  no  rase  in  support  of  such  a  proposition.  Sec 
now,  however,  §§  124  a -124  u,  post.']  There  are  two 
dicta  sometimes  cited  for  it.  In  White  v.  White,  .'{<>  Vt. 
338,  a  legacy  to  A.  "  for  the  support  of  himself  and  his 
family,  and  for  no  other  purpose,"  was  paid  to  A.'s  attor- 
ney, and  was  attached  in  the  attorney's  hands  for  a  debt 
of  A.  It  was  held  that  it  was  affected  with  a  trust  for  the 
benefit  of  A.'s  family,  and  could  not  therefore  be  attached 
for  his  debts ;  but  Bennett,  J.,  who  delivered  the  opinion, 
added,  "  For  one,  I  should  apprehend,  if  a  legacy  is  given 
to  a  son  for  his  support  and  for  no  other  purpose,  a  trust 
would  be  created,  and  that  the  property  would  be  held 
subject  to  the  trust."  What  is  meant  is  that  such  a  pro- 
vision would  prevent  the  legacy  being  garnisheed  for  the 
sons  debts.  That  is  merely  a  question  of  local  practice. 
There  is  no  reason  to  suppose  the  legacy  could  not  be 
reached  in  equity  by  a  creditor  of  the  son.    See  §  212,  post. 

$  122.  In  Brarnan  v.  Stiles,  2  Pick.  400,  a  testator  de- 
vised his  property  to  his  children  equally,  but  directed  that 
the  share  of  his  son  J.  "shall  be  deposited  by  my  executors 
in  the  hands  of  my  sons  L.  and  B.,  and  be  retained  by 
them  and  dealt  out  to  the  said  J.  for  his  comfort  and  ad- 
vantage, according  to  their  best  judgment  and  discretion." 
lie  gave  his  executor  power  to  sell  all  his  real  estate.  The 
share  of  J.  in  the  real  estate  was  attached  by  his  creditors. 
Subsequently,  the  executor  sold  all  the  real  estate  under 
the  power.  Held  that,  whatever  . I. 's  interest  in  the  real 
estate  was,  it  was  devested  by  the  sale  under  the  power. 


RESTRAINTS  OX   ALIENATION.  107 

The  decision  was  plain  enough,  but  Parker,  C.  J.,  who 
gave  the  opinion,  went  on  to  say :  "  Nothing  can  be  more 
clear  than  that  the  testator,  by  these  words,  intended  that 
Ins  sons  L.  and  li.  should  be  the  trustees  of  J.  as  to  every- 
thing which  was  the  subject  matter  of  this  provision  ;  and 
such  intention  was  lawful,  for  he  having  the  power  of  dis- 
posing of  his  property  as  he  pleased,  had  a  right  to  prevent 
it  from  going  to  the  creditors  of  his  son,  or  from  being 
wasted  by  the  son  himself,  if,  as  was  probable,  he  had  be- 
come incapable  of  taking  care  of  property.  Creditors  have 
no  right  to  complain  ;  for  unless  such  disposition  can  be 
made,  without  doubt,  testators  in  like  situations  would 
give  their  property  to  their  other  children."  It  must  be 
remembered  that  there  was  at  that  time  no  equity  court  in 
Massachusetts. 

§  123.  It  would  be  hardly  worth  while  to  dwell  on  this 
dictum,  opposed  as  it  is  to  an  overwhelming  weight  of 
authority,  were  it  not  that  it  is  frequently  relied  upon  in 
support  of  the  validity  of  "spendthrift  trusts,"  i.  e.  trusts 
creating  inalienable  equitable  life  interests.  And  in  esti- 
mating the  importance  to  be  attached  to  it,  it  is  to  be  ob- 
served that  it  does  not  allege  that  equitable  life  estates 
may  be  freed  from  debts,  but  that  equitable  fees  may  be, 
—  a  proposition  absolutely  without  countenance  elsewhere. 
For  even  the  courts  of  Pennsylvania,  the  stoutest  uphold- 
ers of  spendthrift  trusts,  fully  recognize  the  invalidity  of 
restrictions  on  fees,  and  are  as  orthodox  on  this  point  as 
Lord  Eldon  himself.  See  §  115,  ante.  [But  see  now 
§§  1-24  <i- 124  k,2)ost.~]  The  extravagance  of  this  dictum 
shows  its  ill-considered  character,  and  deprives  it  of  the 
weight  it  might  have  had,  if  limited  to  a  proposition  for 
which  even  a  semblance  of  authority  could  be  adduced. 


108  RESTRAINTS   ON    ALIENATION. 

§124.  In  Rhoads  v.  Rhoads,  43  111.  239,  a  testator  di- 
rected that  all  his  estate  should  be  held  by  his  executors 
in  trust  for  fifteen  years  for  the  purpose  of  investing  it  in 
United  States  bonds;  that  the  interest  and  all  accumula- 
tions should  be  invested  in  the  same  way,  so  as  to  increase 
In-  estate  as  much  as  possible  during  the  existence  of  the 
trust,  for  the  benefit  of  his  wife  and  children,  with  the  dis- 
tinct understanding  that  his  executors  should  retain  in 
their  hands,  at  all  times,  sufficient  means  to  provide  for 
the  proper  support  of  his  wife  and  her  family,  and  for  the 
education  of  his  youngest  children,  the  amount  proper  for 
such  purposes  to  be  left  to  their  discretion  ;  that  his  ex- 
ecutors should  pay  at  once  $5,000  to  his  son-in-law,  if  he 
should  wish  to  go  into  business,  to  be  charged  against  his 
wife,  the  testator's  daughter  ;  and  that  at  the  end  of  fifteen 
years  from  and  after  his  death  the  trust  thus  created  should 
cease,  and  all  his  estate  be  distributed  among  his  wife  and 
children  in  this  manner,  viz.:  the  sum  of  $10,000  to  be 
paid  to  his  wife,  to  be  held  by  her  as  absolute  property ; 
the  remainder  of  his  estate  to  be  divided  among  his  chil- 
dren according  to  the  laws  of  the  State,  each  child  to  be 
charged  with  such  sums  as  had  been  or  might  be  charged 
against  them  as  advancements.  The  testator  died  in  1863, 
and  his  wife  a  few  months  after.  Eight  children  survived 
him.  In  lllo'G,  when  five  of  the  children  were  over  age, 
the  adult  children  brought  a  bill  praying  that  their  shares 
might  be  paid  to  them,  and  alleging  that  SI 0,000  was 
enough  for  the  support  and  education  of  the  minors.  The 
surviving  executor  answered,  admitting  that  it  would  be 
enough.  The  Court  dismissed  the  bill.  Breese,  J.,  who 
delivered  the  opinion,  said  that  doctrines  had  been  main- 
tained by  the  counsel  for  the  plaintiffs  "requiring  us  to 


RESTRAINTS  OX   ALIENATION.  109 

look  attentively  and  searchingly  into  the  books  cited  as 
authority."      "Counsel   start  with   the  proposition,  that 
'  where  moneys  are  to  accumulate  until  the  beneficiaries 
arrive  at  an  age  beyond  adult  age,  they  may  have  the  fund 
on  arrival  at  adult  age,  and  that  is  settled  beyond  contro- 
versy.'    The  authorities  to  which  he  refers  are  Williams  on 
Executors,  119;  Lewis  on  Perpetuities,  528  to  531,  and 
note  p;  Saunders  v.  Vautier,  4  Beav.  115,  and  s.  c.  in 
Craig  &  Phillips,  240,  note  4,  p.  248  ;  Josselyri  v.  Josselyn, 
9  Simons,  (5:5 ;  Leaning  v.  Sherratt,  2  Hare,  21,  and  note  1 ; 
Bocke  v.  Roche,  9  Beavan,  66,  and  Curtis  v.  bukin,  5  Id. 
155."     "We  have  looked  into  all  the  reported  cases  cited 
above  which  we  have  at  command,  and  do  not  find  any 
one  of  them  supporting  the  broad  doctrine  insisted  upon." 
The   learned  judge  quotes  Lewis    on    Perpetuities,   528, 
note  {p),  giving  the  statement  of  Josselyn  v.  Josselyn  and 
Saunders  v.  Vautier  there  made.    He  then  continues  :  "  The 
author  of  the  note  insists  that  the  true  ground  of  the  de- 
cisions in  these  cases  is,  that  the  legacies  being  vested  at 
once,  and  there  being  merely  a  postponed  enjoyment,  with- 
out any  gift  over,  in  the  event  of  the  legatees  not  attaining 
such  fall  enjoyment,  the  consequences  of  the  right  of  prop- 
erty inevitably  attached ;  one  of  which  was,  the  power  to 
assume  an  absolute  control  over,  and  therefore  to  demand 
a  transfer  of,  the  fund  immediately  on  attaining  majority ; 
it  being  open  to  the  legatee,  either  to  allow  the  accumula- 
tions to  proceed  until  his  attainment  of  the  age  specified  in 
the  will,  or  (as  the  attainment  of  a  particular  age  was  not 
of  the  essence  of  the  gift)  to  anticipate  the  accumulations 
by  taking  the  fund  into  his  own  hands,  immediately  the 
law  gave  him  the  power  of  affecting  or  disposing  of  his 
property.     And  he  says  that  this  is  the  proper  interpreta- 


110  RESTRAINTS  ON  ALIENATION. 

fcion  of  the  decisions  in  question,  on  one  of  the  cases  again 
coming  before  the  court  (4  Beavan,  11">),  is  conclusively 
established  by  the  observation  of  Lord  Langdale  to  the 
effect  that  where  a  legacy  is  directed  to  accumulate  for  a 
certain  period,  or  where  the  payment  is  postponed,  the 
legatee,  if  he  has  an  absolute  indefeasible  interest  in  the 
legacy,  is  not  bound  to  wait  until  the  expiration  of  that 
period,  but  may  require  payment  the  moment  he  is  com- 
petent to  give  a  valid  discharge."  The  logical  consequence 
would  seem  to  be  to  grant  the  prayer  of  the  bill,  but  the 
judge  immediately  adds:  "We  are  at  a  loss  to  perceive 
the  analogy  between  these  cases  (and  the  others  cited  are 
of  the  same  character)  and  the  one  now  before  us,"  and 
why  ?  "  In  this  case  we  are  not  dealing  with  legacies,  or 
with  remainders  or  residuums  of  an  estate,  but  are  called 
upon  to  uphold  or  overthrow  the  scheme  adopted  by  the 
testator  for  the  disposal  of  his  whole  estate."  "  This  case 
does  not  seem  to  have  one  single  feature  in  common  with 
the  cases  cited,  or  of  any  one  of  them."  What  are  the  two 
classes  of  cases  between  which  the  learned  judge  is  "at  a 
loss  to  perceive  the  analogy ;"  and  which  do  "  not  seem  to 
have  one  single  feature  in  common  "  ?  The  first  is  that  of 
gifts  of  a  residue  ;  such  was  the  case  in  Josselyn  v.  Josselyn, 
and  Rocke  v.  Roche:  the  second,  that  of  gifts  of  the  whole 
property  ;  such  was  the  case  before  the  court.  iY.  gives  a 
legacy  of  $1,000  or  $100  to  X.,  and  the  residue  of  his  es- 
tate, amounting  to  $1,000,000,  to  his  children  when  they 
reach  twenty-five ;  the  children,  on  the  authority  of  Josse- 
lyn v.  Josselyn  and  Rocke  v.  Rocke,  are  entitled  to  the 
property  at  once.  B.  gives  no  legacy  at  all,  but  gives  his 
whole  property  to  his  children  when  they  reach  twenty-five ; 
the  children  must  wait  till  the  prescribed  age  is  reached; 


RESTRAINTS  ON  ALIENATION.  Ill 

because  the  judge  is  at  a  loss  to  see  any  analogy  with  the 
preceding  case,  and  because  the  two  do  "  not  seem  to  have 
one  single  feature  in  common."  A  more  futile  distinction 
is  not  to  be  found  in  the  books.  Its  statement  is  its  best 
answer.1 

§  124  a.  [The  recent  decisions  in  Pennsylvania  leave  the 
present  state  of  law  there  in  some  doubt.  As  has  been 
said,  §  115',  ante,  in  Keysets  Appeal,  ~>7  Pa.  236,  the  pos- 
sibility of  making  equitable  fees  inalienable  was  denied, 
(and  see  House  v.  Spear,  1  W.  N.  C.  (Pa.)  34  ;  Ward's  Es- 
tate, 10  Phil.  259;  s.  c.  13  W.  N.  C.  282,  283;)  and  in 
Philadelphia  v.  Girard,  45  Pa.  9,  27,  the  doctrine  of 
Saunders  v.  Vautier  was  referred  to  with  approval.  In 
Hendersons  Estate,  15  Phil.  598,  there  was  a  trust  to  hold 
property  seven  years  and  then  sell  and  distribute  it  to  the 
cestuis  que  trust,  but  on  the  demand  of  some  of  the  cestuis 
que  trust,  the  trustee  was  ordered  by  the  Orphans'  Court  of 
Philadelphia  to  distribute  before  the  seven  years  had  ex- 
pired ;  and  in  Coopers  Estate,  150  Pa.  5/6,  powers  given 
to  trustees  were  held  not  too  remote,  because  "it  was 
competent  for  all  the  parties  in  interest  at  any  time  to 
defeat  the  power  and  to  take  the  property  discharged 
thereof."   p.  585.] 

§  124  b.  [It  is  true  that  in  Hutchisons  Appeal,  82  Pa. 
509;  Widens  Appeal,  105  Pa.  121 ;  Auberfs  Appeal,  119 
Pa.  48,  and  Cooper's  Estate,  ubi  supra,  the  Court  refused 
to  order  a  trustee  to  distribute  to  the  owners  of  the  entire 
equitable  interest,  but  in  each  case  the  distribution  was 

1  [The  prayer  of  the  hill  in  this  case  might  have  been  properly  enough 
refused  on  the  ground  that  only  a  part  of  the  cestuis  que  trust  desired  that 
the  trust  should  be  terminated.  But  no  such  ground  was  taken  *iy  the 
Court.] 


112  RESTRAINTS   OX    ALIENATION. 

opposed  by  one  or  more  of  the  erst  u  is  que  trust,  and,  as  the 
Court  justly  remarks,  half  of  the  whole  is  not  necessarily 
the  same  as  the  whole  of  the  half  of  a  trust  fund.] 

§  124  c.  [But  in  Butler  v.  Butler,  9  Phil.  209,  where  a 
fund  had  been  given  to  be  conveyed  to  A.  on  his  reaching 
twenty-eight  with  gifts  over  which  had  failed,  Sharswood, 
J.,  sitting  in  equity,  said  :  "  I  am  of  the  opinion  that  it  w  as 
the  evident  intention  of  the  testator  that  the  plaintiff  should 
not  have  possession  and  dominion  over  the  principal  of  the 
estate  until  he  arrived  at  the  age  of  twenty-eight  years,  and 
that  to  carry  this  intention,  which  is  certainly  lawful,  into 
elleet,  it  is  necessary  to  hold  the  trust  created  by  him  an 
active  trust."  And  he  refused  therefore  to  order  a  con- 
veyance to  A.     See  Pemi.  Co.  v.  Price,  7  Phil-  465,  469.] 

§  124  J.  [Hinkle's  Appeal,  116  Pa.  490,  is  very  blindly 
reported.  The  facts  have  to  be  picked  out  from  various 
parts  of  the  report.  It  would  seem  that  a  trustee  under  a 
will  held  property  in  trust  to  pay  the  income  to  A.  for  life, 
and  on  his  death  to  convey  the  principal  to  B.,  C,  and  D., 
and  that  A.  transferred  his  interest  to  B.,  C,  and  D.  The 
court  refused  to  order  a  conveyance  to  B.,  C,  and  D.  It 
said :  "  He  [A.]  is  entitled,  by  the  terms  of  the  will,  to  the 
interest  of  the  money  during  his  life.  His  transfer  of  that 
right  to  his  children  [B.,  C,  and  D.]  entitles  them  to  re- 
ceive the  interest,  but  not  to  demand  the  principal  until  it 
becomes  due  and  payable.  The  auditor  does  not  find  that 
the  money  was  awarded  directly  to  the  children  by  agree- 
ment of  all  parties.  The  father  and  children  so  agreed, 
but  there  is  no  evidence  of  such  agreement  by  the  proper 
custodian  of  the  money  during  the  life  of  the  father." 
There  was  no  restraint  imposed  by  the  will  on  the  aliena- 
tion of  A.'s  life  estate.     On  the  statement  above  given,  the 


RESTRAINTS   OX   ALIENATION.  113 

decision  seems  so  clearly  wrong  that  great  doubt  is  felt  by 
the  writer  whether  that  statement  is  correct.] 

§  124  e.  [In  Beck's  Estate,  133  Pa.  51,  a  testatrix  gave 
to  E.  certain  chattels  and  a  share  in  the  residue  "  expressly 
upon  condition  that  they  shall  not  be  liable  to  be  attached 
or  seized  for  the  debts  or  moneys  which  said  E.  may  owe 
at  the  time  of  my  decease,  but  that  the  whole  amount  of 
her  share  shall  be  paid  directly  to  said  E.  by  my  executor, 
without  diminution  for  the  payment  of  her  said  indebted- 
ness." H.  having  a  judgment  against  E.  issued  thereon  an 
attachment  execution,  which  was  served  upon  E.,  and  upon 
the  executor  of  the  testatrix  as  garnishee.  The  court  held 
that,  notwithstanding  the  attachment  execution,  payment 
must  be  made  by  the  executor  to  E.  Keyser's  Appeal, 
57  Pa.  236,  §  115,  ante,  was  apparently  not  called  to  the 
attention  of  the  court.] 

§  124/.  [And  in  Goes  Estate,  146  Pa.  431,  a  testatrix 
devised  and  bequeathed  all  her  estate,  real  and  personal, 
to  her  children  and  added  that  it  was  her  wish  that  none 
of  said  estate  could  be  seized  upon  or  levied  upon  for  any 
debt  or  claim  against  any  one  of  the  children.  An  execu- 
tion attachment  on  behalf  of  a  creditor  of  one  of  the  chil- 
dren was  served  upon  the  executor  of  the  will.  The  Su- 
preme Court  held  that  the  creditor  could  not  reach  the 
share  of  his  debtor  in  the  hands  of  the  executor,  saving 
that  it  thought  the  case  was  ruled  by  Beck's  Case.  It 
seems  difficult  to  reconcile  these  last  two  cases  with  Key- 
ser's Appeal,  and  leaves  the  law  in  Pennsylvania  in  a  state 
of  distressing  uncertainty.  Cf.  §  114  a,  ante;  also  Ames 
v.  Clarke,  106  Mass.  573,  §  239,  post.] 

§  124  g.  [Perhaps  Keyser's  Appeal  and  House  v.  Spear, 
1  W.  N.  C.  (Pa.)  34,  may  be  reconciled  with  Beck's  Estate 


114  RESTRAINTS   ON    AUKXATIOX. 

and  Goe's  Estate  in  the  following  manner.  In  Pennsyl- 
vania when  a  trustee  has  no  duties  to  perform,  the  cestui 
que  trust  has,  at  once,  not  merely  the  equitable,  but  the 
legal  title,  and  this  not,  by  virtue  of  the  Statute  of  Uses, 
in  real  estate  only,  but  also  in  personal  property.  The  di- 
rection, common  in  decrees  made  in  suits  touching  such 
trusts,  that  the  trustee  shall  convey  is  inserted,  not  as  mat- 
ter of  necessity,  but  ex  ahum/it  nil  cautela.  See  §  215  and 
note,  post.  In  Keyser  s  Appeal,  the  trustee  had  no  duties, 
and  so  the  cestuis  que  trust  had  at  once  the  legal  interest. 
(But  see  Phillips's  Appeal,  -2  W.  N.  C.  (Pa.)  483.)  This 
of  course  could  not  be  made  inalienable.  See  HaJui  v. 
Hutchinson,  159  Pa.  133.  But  this  doctrine  has  never 
been  extended  in  Pennsylvania  to  executors.  A  legatee, 
either  specific  or  pecuniary,  has  not  the  legal  title.  Until 
the  executor  assents  to  the  legacy  or  pays  it,  the  legal  in- 
terest is  in  him,  the  interest  of  the  legatee  is  equitable,  and 
this  equitable  interest  can  be  subjected  to  a  valid  restraint 
on  alienation.  This  is  Beck's  Estate.  If  such  be  the  true 
interpretation  of  the  cases,  the  result  is  important.  Key- 
set-'s  Appeal  would  not  decide,  as  it  has  been  sometimes 
supposed  it  did,  that  an  equitable  fee  cannot  be  subjected 
to  a  spendthrift  trust,  for  in  Keysers  Appeal  the  interest 
attached  was  not  equitable  but  legal;  and  Beck's  Estate 
and  Goe's  Estate  would  stand  as  uncontradicted  authorities 
that  equitable  fees  can  be  subjected  to  spendthrift  trusts. 
On  this  view,  if  property  were  given  to  A.,  to  employ  it, 
principal  and  interest,  for  the  support  of  B.  at  A.'s  discre- 
tion, as  the  trustee  would  have  active  duties  to  perform, 
B.'s  interest  would  be  equitable,  and  his  creditors  could 
not  reach  it.  It  is  certainly  to  be  desired  that  the  ques- 
tion may  come  before  the  Supreme  Court  of  Pennsylvania 


RESTRAINTS   OX   ALIENATION.  115 

in  such  a  form  as  to  receive  an  authoritative  decision  on 
the  true  line  of  demarcation  between  the  cases.] 

§  124  h.  [Barker's  Estate,  159  Pa.  518,  is  the  latest 
utterance  of  the  Pennsylvania  courts  on  the  subject.  A 
testatrix  appointed  her  husband  her  executor  with  power 
to  take  charge  of  her  estate,  real  and  personal,  and  dispose 
of  it  in  his  discretion,  subject  to  the  restrictions  and  condi- 
tions in  her  will,  paying  incumbrances  and  dividing  the 
balance  among  the  children  ;  such  distribution  not  to  take 
place  till  the  husband's  death  ;  until  then,  the  income,  or  so 
much  thereof  as  he  might  desire,  to  be  applied  to  the  sup- 
port of  himself  and  of  such  members  of  his  family  as  might, 
in  his  discretion,  require  it.  On  any  child  becoming  of  age 
the  husband  was  authorized,  if  he  deemed  it  expedient,  to 
bestow  on  such  child  the  portion  of  the  estate  it  would  in- 
herit on  the  husband  s  death.  The  testatrix  also  declared 
that  if,  in  such  bestowal,  the  husband  should  exceed  the 
share  which  would  otherwise  have  fallen  to  any  child,  he 
should  not  be  liable  to  account  to  the  other  children.  And 
she  added :  "It  is  my  will  in  creating  the  foregoing  trust 
for  the  maintenance  and  support  of  my  husband  and  fam- 
ily that  the  same  shall  be  enjoyed  by  him  and  them  with- 
out being  in  any  way  subject  to  or  liable  for  the  debts  or 
engagements  of  my  said  husband  or  any  of  our  children." 
A  son  of  the  testatrix  who  had  reached  twenty-one,  made 
an  assignment  for  the  benefit  of  his  creditors;  afterwards 
the  husband  made  an  advance  to  this  son,  and  paid  the 
money  to  him.  Two  women  named  respectively  Anna  B. 
Scott  and  Deborah  W.  Mellor  objected  to  the  allowance 
of  this  item  in  the  executor's  account.  Why  they  should 
object  or  what  they  had  to  do  with  the  case  the  report  fails 
to  disclose.] 


116  RESTRAINTS  OX  ALIENATION. 

§  1:24  i.  [In  tlir  ( Orphans'  Court  the  auditing  judge  ruled 
that  the  children  took  vested  interests  when  they  reached 
twenty-one,  Imt  that  the  husband  "had  the  right  to  be- 
stow upon  any  of  the  children  a  sum  greater  or  less  than 
their  respective  shares.  If  he  chose  to  exercise  that  option 
ly  giving  to  the  children,  other  than  the  bankrupt,  a  sum 
so  far  in  excess  of  their  portions  as  should  leave  nothing  to 
the  debtor,  the  creditors  would  be  powerless."  The  Or- 
phans' Court  affirmed  the  decision  of  the  auditing  judge. 
They  say :  "Where  there  is  a  present  gift,  in  possession,  of 
the  entire  beneficial  ownership,  a  trust  to  protect  against 
creditors  is  invalid :  Keyser's  Appeal,  57  Pa.  23G  ;  but  the 
power  of  alienation  may,  unquestionably,  be  withheld  in 
the  case  of  a  contingent  interest  before  it  vests,  even  in 
England:  Large's  Case,  2  Leon.  82 ;  3  Leon.  IV>2;  Barnett 
v.  Blake,  2  Dr.  &  Sm.  1/7  ;  and  so  it  would  seem  in  Penn- 
sylvania in  case  of  a  vested  interest,  prior  to  its  coming 
into  possession,  or  where  the  restraint  is  confined  to  a  lim- 
ited period  not  transgressing  the  rule  against  perpetuities : 
McWilliams  v.  Nisly,  2  S.  &  R.  507,  513.  See  also 
Jauretche  v.  Proctor,  48  Pa.  472."  The  Court  refer  also 
to  Beclcs  Estate  and  Goes  Estate,  nbi  supra.  The  Su- 
preme Court  affirmed  the  decision,  saying  that  they  did  so 
on  the  reasons  given  in  the  opinion  of  the  auditing  judge.] 

§  1247'.  [It  does  not  seem  entirely  clear  that  the  son 
did  not  have  a  legal  interest,  but,  assuming  that  he  had 
only  an  equitable  interest,  the  ruling  of  the  auditing  judge 
appears  to  amount  to  this.  If  A.,  having  an  equitable 
vested  interest  in  remainder  in  a  trust  fund  after  a  life  in- 
terest given  to  the  trustee,  assigns  that  interest,  and  the 
trustee  waives  his  life  estate  and  is  ready  to  pay  over  A.s 
interest  at  once,  the  trustee  can  ignore  the  assignment  and 


RESTRAINTS   ON    ALIENATION.  117 

pay  the  money  directly  to  A.,  provided  he  has  power  to 
appoint  the  fund  away  from  A.  This  is  the  reasoning  ap- 
proved by  the  Supreme  Court,  but  it  seems  open  to  some 
criticism.  Suppose  the  trustee  had  died,  and  his  successor 
is  dividing  the  property,  and  has  notice  that  A.  has  assigned 
his  share,  he  would  surely  have  to  pay  it  to  the  assignee, 
and  what  difference  can  it  make  that  the  life  tenant 
waives  his  interest  and  allows  the  vested  interest  in  re- 
mainder to  come  into  possession  at  once  ?  and  again,  what 
difference  can  it  make  that  the  vested  interest  could  have 
been  divested  by  the  exercise  of  a  power  if  the  power  has 
not  been  exercised  ?] 

§  124  k.  [The  full  bench  of  the  Orphans'  Court  places 
the  decision  on  another  ground,  viz. :  that  a  future  interest, 
though  vested,  can  be  put  under  a  restraint  against  alien- 
ation if  it  has  not  come  into  possession ;  but  this  ground 
seems  no  more  tenable  than  that  taken  by  the  auditing 
judge.  It  is  doubtless  true  that  a  future  contingent  inter- 
est may  be  forfeited  by  alienation  before  vesting,  §  46, 
ante;  but  that  is  a  totally  different  proposition  from  saying 
that  a  contingent  future  interest  shall  not  be  assignable 
before  vesting.  Law  and  equity  have  always  lent  them- 
selves to  the  easy  destruction  of  contingent  interests,  but 
that  is  very  different  from  watching  over  such  interests  so 
carefully  as  not  to  allow  any  one  having  a  contingent  future 
interest  to  get  rid  of  it.  But  further,  even  a  clause  of 
forfeiture  upon  alienation  is  not  held  valid  when  attached 
to  interests  vested  in  interest  though  not  in  possession, 
§§  47  et  seqq.,  ante.  McWilliams  v.  Nishj  and  Jauretche 
v.  Proctor  contain  only  dicta.  Barker  s  Estate  cannot  be 
considered  as  having  made  the  state  of  the  law  in  Penn- 
sylvania any  clearer.] 


US  RESTRAINTS  ON   ALIENATION. 

§  124/.   [Claflln  v.  Claflin,  149  Mass.  19,  is  the  most 
complete  and  outspoken  departure  from  the  old  law.     A 
testator  gave  a  share  of  the  residue  of  his  personal  estate 
to  trustees  in  trust  to  sell  and  dispose  of  the  same,  and 
to  pay  the  proceeds  to  his  son  in  the  following  manner: 
$10,000  when  he  was  twenty-one,  $10,000  when  he  was 
twenty-live,  and  the  balance  when  he  was  thirty.     The  son 
having  reached  twenty-one,  brought  a  bill  in  equity  to  have 
the  whole  share  paid  to  him.     The  Court  state  the  doc- 
trine of  the  English  cases  supra,   with  great   precision. 
They  add  that  the  son's  interest  is  alienable  by  him,  and 
can  be  taken  by  his  creditors  to  pay  his  debts.     But  they 
say  that  since  spendthrift  trusts  have  been  established  in 
the  law  of  Massachusetts  by  Broadway  Bonk  v.  Adams, 
133  Mass.  170,  restrietions  on  the  fee  such  as  the  testa- 
tor imposed  in  this  case  will  be  sustained.      "The  rule 
contended  for  by  the  plaintiff  in  that  case  was  founded 
upon  the  same  considerations  as  that  contended  for  by  the 
plaintiff  in  this,  and  the  grounds  on  which  this  Court  de- 
clined to  follow  the  English  rule  in  that  case  are  applicable 
to  this ;  and  for  the  reasons  there  given,  we  are  unable  to 
see  that  the  directions  of  the  testator  to  the  trustees,  to 
pay  the  money  to  the  plaintiff  when  he  reaches  the  age  of 
twenty-five  and  thirty  years,  and  not  before,  arc  against 
public  policy,  or  are  so  far  inconsistent  with  the  rights  of 
property  given  to  the  plaintiff  that  they  should  not  be  car- 
ried into  effect.     It  cannot  be  said  that  these  restrietions 
upon  the  plaintiff's  possession  and  control  of  the  property 
are  altogether  useless,  for  there  is  not  the  same  danger  that 
he  will  spend  the  property  while  it  is  in  the  hands  of  the 
trustees  as  there  would  be  if  it  were  in  his  own."1] 

1  [In  Oray,  Pule  against  Perp.,  §  120,  note,  attention  had  been  railed 
to  the  fact  that  by  the  introduction  of  spendthrift  trusts  in  Pennsylvania 


RESTRAINTS   ON   ALIENATION.  110 

§  124  m.  [But  even  when  a  State  Court  lias  made  up  its 
mind  to  tolerate  spendthrift  trusts,  there  are  some  reasons, 
it  is  respectfully  submitted,  why  the  doctrine  on  which  such 
trusts  rest,  whatever  that  may  be,  should  not  be  extended 
to  cases  like  Claflin  v.  Claflin.  That  the  interest  of  the 
equitable  owner  can  be  alienated,  voluntarily  or  involuntarily, 
the  Court  in  that  case  declare.  They  add,  "  But  whether 
a  creditor  or  a  grantee  of  the  plaintiff  in  this  case  would  be 
entitled  to  the  immediate  possession  of  the  property,  or 
would  only  take  the  plaintiff's  title  sub  modo,  need  not  be 
decided."     Let  us  consider  both  alternatives.] 

124  n.  [If  a  creditor  or  grantee  can  get  immediate  pos- 
session of  the  fund,  the  restraint  is  a  mere  form.  The 
cestui  que  trust  can,  by  the  simple  ceremony  of  making  a 
deed  of  his  interest  to  a  third  person,  and  taking  a  deed 
back,  hold  the  property  free  from  all  fetters.  If,  on  the 
other  hand,  the  creditor  or  grantee  can  take  possession  of 
the  property  only  at  the  time  when  the  settlor  or  testator 
has  directed,  for  example,  when  the  cestui  que  trust  reaches 
forty  years,  then  any  sale  by  or  taking  from  the  cestui  que 
trust  will  be  under  circumstances  highly  disadvantageous 
to  him.  Property  sold  in  presenti,  but  not  to  be  delivered 
for  many  years,  must  be  sold  at  a  sacrifice,  and  when  the 
seller  is  a  person  of  the  character  for  whom  such  restraints 
are  supposed  to  be  useful,  the  chances  are  that  it  will  be 
sold  at  a  very  great  sacrifice.  In  fact,  the  law,  by  sanction- 
ing such  restraints,  is  exposing  inexperienced  youth  to  those 
"  catching  bargains,"  against  which  the  old-fashioned  equity 
always  strove  to  protect  it.] 

and  Massachusetts  the  old  boundaries  had  been  effaced  in  those  States,  and 
that  it  was  therefore  impossible  to  say  where  the  new  ones  would  be  set  up, 
and  whether  and  to  what  extent  restraints  would  be  allowed  on  the  alien- 
ation of  equitable  fees.  See  also  au  article  by  A.  H.  Wellruan,  Esq.,  18 
Cent.  L.  J.  307.] 


120  RESTRAINTS   OX  ALIENATION. 

§  124  o.  [The  law  1ms  fixed  the  age  of  legal  responsi- 
bility at  twenty-one  ;  if  that  is  too  young,  let  it  be  changed, 
but  the  wisdom  of  allowing  individuals  to  change  it  at 
their  pleasure  is  not  clear.  And,  if  paternalism  is  to  be 
introduced  into  our  law,  its  introduction  in  this  particular 
class  of  cases  seems  to  be  without  the  advantages  that  may 
exist  elsewhere,  and  to  retain  only  its  irritating  and  demor- 
alizing features.  The  farther  these  novel  doctrines  are 
carried  out,  the  greater  seems  the  wisdom  of  the  old  law.] 

§  124^>.  [The  Court  say,  "We  have  found  no  expres- 
sion of  any  opinion  in  our  reports  that  provisions  requiring 
a  trustee  to  hold  and  manage  the  trust  property  until  the 
beneficiary  reached  an  age  beyond  that  of  twenty-one  years 
are  necessarily  void,  if  the  interest  of  the  beneficiary  is 
vested  and  absolute."  But  the  distinction  which  the  Court 
endeavor  to  establish  between  the  case  before  it  and  Sears 
v.  Choate,  140  Mass.  395,  §  114  a,  ante,  will  perhaps  not 
be  felt  by  the  learned  reader  to  be  entirely  satisfactory,  and 
the  attention  of  the  Court  appears  not  to  have  been  called 
to  Sears  v.  Putnam,  102  Mass.  5,  §  114a,  ante.  If  the 
cases  are  all  reconcilable,  it  is  only  by  the  establishment 
of  subtle  distinctions,  the  inevitable  tendency  of  which  to 
promote  litigation  is  not  the  least  of  the  objections  to  this 
new  departure  in  the  law.] 

§  124  q.  [To  complete  the  matter  reference  should  be 
made  to  a  diction  in  Buford  v.  Guthrie,  14  Bush,  077,  G8G. 
The  decision  in  McKindrey  v.  Armstrong,  10  Out.  Ap.  17, 
that  a  trustee  who  was  given  the  option  to  pay  money  to  A., 
or  to  buy  a  house  and  convey  it  to  A.,  in  fee,  could  not  be 
garmisheed  as  owing  a  debt  to  A.,  seems  correct.  Patterson, 
.1.  A.,  said  that  he  did  not  doubt  that  the  cestui  que  trust 
could  have  elected  to  take  the  money,  but  that  he  had  not 


RESTRAINTS  ON  ALIENATION.  121 

so  elected,  and  that  in  the  absence  of  a  decision  by  the  trus- 
tee or  an  election  to  take  as  money  by  the  cestui  que  I  rust,  no 
debt  could  be  said  to  be  due  from  the  former  to  the  latter. 
Cf.  Meek  v.  Briggs,  87  Iowa,  G10,  §  296  a,  post. ,] 

^124  r.  [If  the  courts  of  Illinois  adopt  the  construction 
of  the  statutes  of  that  State  put  upon  them  by  the  Supreme 
Court  of  the  United  States,  an  extraordinary,  indeed 
unique,  condition  of  things  exists  in  that  State.  The  case 
of  Steib  v.  Whitehead,  111  111.  247  (1884),  while  sustaining 
the  validity  of  spendthrift  trusts  of  life  interests,  declared 
in  the  most  emphatic  manner  that  any  restraints  of  alien- 
ation annexed  to  a  fee  simple  were  void,  and  in  accordance 
with  this,  the  Supreme  Court  of  the  United  States,  in 
Potter  v.  Couch,  141  U.  S.  296,  315-318  (1891),  held  that 
any  attempt  to  restrain  the  alienation  of  an  equitable  fee 
simple  was  inoperative.  But  the  Illinois  Rev.  Sts.  c.  22, 
§  49,  enacts  that  when  an  execution  is  returned  unsatisfied, 
the  judgment  creditor  may  file  a  bill  in  equity  "to  compel 
the  discovery  of  any  property  or  thing  in  action  belonging 
to  the  defendant,  and  of  any  property,  money,  or  thing  in 
action  due  to  him,  or  held  in  trust  for  him,  and  to  prevent 
the  transfer  of  any  such  property,  money,  or  thing  in  action, 
or  the  payment  or  delivery  thereof  to  the  defendant,  except 
when  such  trust  has,  in  good  faith,  been  created  by,  or  the 
fund  so  held  in  trust  has  proceeded  from  some  person  other 
than  the  defendant  himself."  And  the  Supreme  Court  held, 
in  Potter  v.  Couch,  that  under  this  statute,  if  property  was 
given  to  A.  in  trust  for  B.  and  his  heirs,  B.'s  interest  could 
not  be  reached  by  his  creditors.  That  is,  all  equitable  fees 
and  absolute  interests  in  personalty  can  be  alienated  by  the 
cestui  que  trust  at  his  pleasure,  but  cannot  be  taken  for  his 
debts.     This  seems  a  monstrous  result,  but  it  is  hard  to  see 


L22  RESTRAINTS   OX   ALIENATION. 

what  other  construction  can  be  put  upon  the  statute.  See 
§§  240  w,  240  x,  post] 

§  124  s.  [The  case  of  Monroe  v.  Trenholm,  112  X.  C. 
63  I  :  S.  0.  114  X.  C.  590,  is  inexplicable.  T.  by  deed,  re- 
citing his  desire  to  secure  to  his  wife  E.,  and  to  her  chil- 
dren, part  of  his  real  estate,  conveyed  land  to  S.  and  his 
heirs  in  trust  for  the  sole  use  and  benefit  of  E.  and  her 
heirs,  and  empowered  S.  at  any  time  to  dispose  of  the  lands 
when  required  by  E.  T.  died,  and  E.  conveyed  the  land 
to  M.  and  his  heirs.  M.  brought  a  proceeding  against  S. 
to  obtain  a  conveyance  of  the  land.  The  Court  below  or- 
dered the  conveyance  to  be  made,  but  the  Supreme  Court 
reversed  the  judgment,  the  counsel  for  M.  not  appearing. 
That  Court  would  seem  to  have  entirely  overlooked  the  fact 
that  E.  was  a  widow  when  she  made  the  conveyance  to  M., 
and  to  have  considered  the  case  as  if  the  question  were 
whether  a  feme  covert,  being  a  cestui  que  trust,  under  an 
instrument  like  the  one  in  this  case,  could  assign  her  inter- 
est. They  held  that  she  could  not,  and  even  this  would 
seem  wrong,  for  there  was  no  clause  against  anticipation.] 

§  124  t.  [The  counsel  for  M.  petitioned  for  a  rehearing. 
The  Court  refused  it.  They  say  that  the  counsel  for  the 
petitioner  "  has  established  the  proposition  that,  where 
property  is  limited  in  trust  for  a  married  woman  for  the 
sole  purpose  of  preserving  it  from  the  marital  rights  and 
influence  of  the  husband,  the  restrictions  upon  alienation 
become  inoperative  when  the  coverture  ceases."  The  coun- 
sel, therefore,  had  called  to  the  attention  of  the  Court  the 
fact  that  the  cestui  que  trust  was  not  now  a  married  woman, 
yet  all  the  Court  say  is,  "  but  in  view  of  the  peculiar  phrase- 
ology of  this  deed  our  conclusion  is  that  the  principle  men- 
tioned does  not  apply  to  this  case."] 


RESTRAINTS   ON  ALIENATION.  123 

§  124  m.  [What  the  peculiar  phraseology  is,  and  why 
the  principle  mentioned  docs  not  apply  to  the  case,  the 
Court  do  not  say.  No  phraseology,  however  peculiar, 
could  render  the  interest  of  an  equitable  tenant  in  fee  in- 
alienable. Nowhere  has  this  been  more  explicitly  or  better 
declared  than  in  North  Carolina.  Mebane  v.  Mebane,  4 
Ircd.  Eq.  131,  §  116,  ante.  It  is  hard  to  resist  the  painful 
feeling  that  the  Court  made  a  blunder,  and  then  did  not 
like  to  acknowledge  it,  and  put  the  counsel  off  with  a 
vague  phrase.] 

§  125.  There  is  one  exception  to  the  invalidity  of  re- 
straints on  the  alienation  of  fees  or  absolute  interests. 
When,  in  the  case  of  married  women,  the  doctrines  of  sep- 
arate use  and  restraint  upon  anticipation  came  into  exist- 
ence, the  interests  alienation  of  which  it  was  sought  to 
restrain  were  life  interests.1  It  was  only  in  Baggett  v. 
Meux,  1  Coll.  138  (1844),  that  the  question  as  to  the  va- 
lidity of  a  clause  against  anticipation  upon  a  gift  of  an 
absolute  interest  came  up.  In  this  case  the  legal  estate  in 
land  was  devised  to  a  married  woman  in  fee,  for  her  sep- 
arate use,  with  a  direction  that  she  should  not  sell  or  in- 
cumber it.  She  did  incumber  it.  Vice-Chancellor  Knight 
Bruce  held  that  a  restraint  on  anticipation  by  a  married 
woman  was  equally  valid  upon  a  fee  simple  as  upon  a  life 
estate  ;  that  the  incumbrance  was  void  ;  and  that  the  deed 
attempting  to  create  it  should  be  delivered  up.  The  de- 
cision was  confirmed  by  Lord  Lyndhurst,  C,  s.  c.  1  Phil. 
627.  [So  Re  Currey,  32  Ch.  D.  361.  Re  Hutchings,  58 
L.  T.  N.  S.  6.2]     So  also  upon  a  gift  to  a  married  woman 

1  On  life  interests  of  married  women,  see  §§  269-277  a,  post. 

2  [St.  44  &  45  Viet.  c.  41  (Conveyancing  and  Law  of  Property  Act,  1881), 


124  RESTRAINTS  ON   ALIENATION. 

of  an  equitable  fee.  Wells  v.  McCatt,64  Pa.  207.  [Gunn 
v.  Broum,  63  Md.  90.  Robinson  v.  Randolph,  21  Bla. 
629.  .]/<>/>/'<»'  v.  Trenholm,  1 1 2  N.  ( !.  63  1 :  8.  0. 114  N.  C. 
590  :  §§  124  .s-124  «,  ante.  In  those  cases  where  a  clause 
against  anticipation  l>y  a  feme  covert  upon  a  gift  of  a  life 
estate  would  be  invalid,  see  §§  270-277  a,  post,  it  will  also 
a  fortiori  be  invalid  when  attached  to  a  gift  of  a  fee 
simple.] 

§  1 25  a.  [Moses  v.  Micou,  79  Ala.  504.  Property  was 
conveyed  by  deed  to  S.  in  trust  to  settle  it  on  the  wife  and 
children  of  M.  in  such  proportions  as  the  trustee  might 
consider  fitting.  The  trustee  never  settled  the  property, 
though  the  income  was  paid  to  the  wife  and  child  of  M. 
It  was  held  that  the  trust  was  executory;  that  the  trustee 
in  executing  the  settlement  could  properly  attach  a  pro- 
vision against  anticipation  to  the  wife's  interest ;  and  that 
therefore  the  creditor  of  M.'s  wife  could  not  maintain  a 
bill  in  equity  to  reach  her  interest  in  the  land.  See  Turner 
v.  Sargent,  17  Beav.  515;  Stanley  v.  Jackman,  23  Beav. 
450,  450  ;  Re  DmnilVs  Trusts,  0  Ir.  L.  R.  322.] 

§  120.  Does  a  restraint  imposed  upon  the  alienation  of 
an  estate  in  fee  simple  prevent  any  dealing  at  all  with  the 
estate  by  a  married  woman  during  her  coverture,  or,  on 
the  other  hand,  does  it  allow  her  to  transfer  the  whole  es- 
tate, subject  to  her  right  to  receive  the  income  during  her 
life?  [In  Daggett  v.  Meux,  ubi  supra,  the  conveyance  by 
the  feme  covert  was  declared  wholly  void,  but  there  the 
wife  had  no  power  to  convey  at  common  law.  Where, 
however,  statutes  empower  a  married  woman  to  pass  the 

§  39,  authorizes  the  Court,  with  the  consent  of  a  married  woman,  to  bind  her 
interest  in  property  which  is  subject  to  a  clause  against  anticipation.  Re 
TippeU's  &  Xe.wbould's  Contract,  37  Ch.  Div.  444.    See  §§  271  a,  296  a,  post.] 


RESTRAINTS  ON  ALIENATION.  125 

legal  title  of  land  which  she  owns  in  fee,  there  is  room  for 
question  whether  a  declaration  that  the  property  is  to  be 
held  for  her  sole  and  separate  use  without  power  of  antici- 
pation will  do  more  than  restrain  her  from  depriving  her- 
self of  the  income  during  coverture.]  Such  limited  restraint 
seems  to  afford  the  married  woman  all  the  protection  that 
is  necessary ;  and  as  the  allowance  of  the  restraint  upon 
anticipation  is  a  recognized  violation  of  the  laws  of  prop- 
erty, introduced  only  for  the  personal  benefit  of  married 
women,  it  may  well  be  argued  that  there  is  no  reason  why 
such  violation  should  be  carried  farther  than  is  necessary 
for  their  personal  benefit.  The  point  does  not  seem  to 
have  been  determined.  See  Spring  v.  Pride,  10  Jur.  N.  s. 
646;  Cooper  v.  Macdonald,  7  Ch.  D.  288;  §  133,  post; 
[Springer  v.  Savage,  143  111.  301 ;  Monroe  v.  Trenholm, 
112  N".  C.  634;  s.  c.  114  N.  C.  590,  §§  124  s- 124  u,  ante. 
Cf.  also  the  following  section ;  but  see  §  275  a,  post.~\ 

§  126  a.  [When  property  is  given  to  A.  for  life,  with 
a  power  of  appointment  by  will,  A.  can,  by  deed,  release 
the  power.  Farwell,  Powers  (2d  ed.),  16.  A  husband 
conveyed  land  to  trustees  in  trust  to  allow  his  wife  to  re- 
ceive the  rents  during  her  life,  for  her  separate  use,  with- 
out power  of  anticipation,  and  after  her  death  to  the  use 
of  such  persons  as  she  should  by  will  appoint.  The  trus- 
tees afterwards,  at  the  request  of  the  wife,  reconveyed  the 
land  to  the  husband.  Chatterton,  V.  C,  thought  that  this 
conveyance  was  inoperative  both  upon  the  life  estate  and 
the  remainder  in  fee,  but  the  Court  of  Appeal,  while  agree- 
ing with  the  Vice  Chancellor  as  to  the  life  estate,  thought 
that  the  wife  could  release  the  power,  although  it  not  being 
then  necessary  to  decide  that  point,  they  made  no  decree 
upon  it.     Heath  v.  Wickham,  3  L.  R.  Ir.  376  ;  s.  c.  5  L.  R. 


126  RESTRAINTS   ON    ALIENATION. 

Ir.  285.  The  language  of  Ball,  C.  (p.  295),  has  a  bearing 
on  the  question  referred  to  in  the  preceding  section.  He 
says  that  the  effect  of  the  clause  against  anticipation  in  a 
marriage  settlement  is  "that  the  intended  wile  shall  not 
anticipate  or  deprive  herself  of  the  power  to  eall  for  the 
income  as  it  beeomes  due.  It  is  'herself'  she  is  not  to  de- 
prive of  the  ineoinc.  ...  Its  objeet  is  not  to  prevent  the 
wife's  disposal  of  her  property  under  a  power,  but  to  pre- 
vent her  from  losing  the  personal  enjoyment  of  it.  It  is 
her  individual  comforts  that  are  in  contemplation,  and  she 
is  not  prevented  from  doing  an  act  which  cannot  take  any 
personal  benefit  from  her."     See  Farwell,  18,  19.] 

§  127.  When  the  absolute  interest  in  personal  property 
is  bequeathed  to  married  women  directly,  and  it  is  at  the 
same  time  provided  that  they  shall  not  anticipate  it,  how 
can  this  provision  be  enforced?  If  the  property  is  in  their 
hands,  how  are  they  to  be  restrained  from  dealing  with  it  ? 
In  Re  Sykes's  Trusts,  2  J.  &  II.  415,  before  Sir  W.  P.  Wood, 
V.  C,  a  fund  of  £35,000  stock  was  appointed  after  the 
death  of  A.,  in  trust  to  be  divided  between  the  daughters 
of  the  testator,  so  that  the  shares  and  income  should  be  for 
their  separate  use,  the  receipts  of  the  daughters  to  be  dis- 
charges for  their  shares,  and  the  daughters  not  to  sell  or 
incumber  their  shares  or  the  income  thereof.  There  were 
gifts  over,  in  case  any  daughter  died  without  issue  within 
twenty-one  years  after  A.'s  death,  to  the  surviving  daugh- 
ters. The  daughters  released  their  interests  as  survivors 
in  each  other's  shares.  One  of  the  daughters,  a  married 
woman,  conveyed  her  interest.  A.,  the  life  tenant,  after- 
wards died.  It  was  held  that  the  conveyance  was  void ; 
and  the  court  also  ordered  that  the  daughter's  share  should 
be  paid  to  her.     No  question  was  made  as  to  this  last  or- 


RESTRAINTS   ON  ALIENATION.  127 

dcr ;  tlic  only  point  argued  was  whether  the  conveyance 
was  good.  There  was  an  inconsistency  in  the  language  of 
the  will.  The  receipt  of  the  daughter  for  her  share  im- 
plied that  it  was  to  be  transferred  to  her  ;  and  yet,  if  trans- 
ferred to  her,  how  could  she  be  prevented  from  anticipating 
it?  And  again,  the  gifts  over  (although  they  were  in  fact 
released)  showed  the  intention  of  the  testatrix  against  the 
transfer  to  the  daughter,  for  the  existence  of  the  gifts  over 
would  have  required  the  holding  of  the  property  in  trust, 
and  prevented  the  transfer  of  the  principal  to  the  daugh- 
ters. In  Re  Ellis  s  Trusts,  L.  R.  17  Eq.  409,  411,  Sir 
George  Jesscl,  M.  R.,  doubted  the  correctness  of  the  report 
in  Re  Sykes's  Trusts.  [The  order  made  in  that  case  seems 
inconsistent  with  Re  Bown,  27  Ch.  Div.  411,  416,  417. 
But  the  Court  of  Appeal  in  this  last  case,  p.  422,  approve 
of  Re  Sykcss  Trusts,  on  the  ground,  semble,  that  the  re- 
straint on  anticipation  was  to  be  considered  as  continuing 
only  during  the  life  of  A.] 

§  128.  In  Re  Sarel,  10  Jur.  n.  s.  876  ;  s.  c.  4  New  Rep. 
321,  a  testatrix  gave  to  her  married  niece  a  legacy  of 
£3,000  and  also  a  share  of  the  residue  of  her  personal  es- 
tate, and  directed  that  any  pecuniary  legacy  or  share  of  her 
residuary  estate  given  to  any  married  niece  should  be  paid 
into  the  proper  hands  of  such  niece,  so  as  that  the  same 
should  not  be  liable  to  the  control  of  her  husband,  or  be 
alienable  by  her  or  her  husband,  and  that  the  receipt  of  said 
niece  alone  should  be  a  sufficient  discharge  to  the  execu- 
tors. The  executor  had  paid  the  niece's  share  of  the  estate 
into  court.  Wood,  V.  C,  held  that  the  money  must  be 
retained  in  court,  and  only  the  income  paid  to  the  legatee 
during  her  coverture. 

§  129.    In  Re  Gaskell's  Trusts,  11  Jur.  n.  s.  780,  a  tes- 


128  RESTRAINTS   ON   ALIENATION. 

tator  gave  his  real  estate  and  the  residue  of  his  personal 
estate  to  trustees  to  make  certain  payments  out  of  the  rents 
and  profits,  and  to  retain  the  residue  of  the  rents  and  profits 
till  the  death  of  his  wife,  and  then  to  sell  the  real  and  per- 
sonal estate  and  divide  the  proceeds  between  two  married 
women,  and  he  declared  that  the  shares  of  each  should  lie 
for  her  sole,  separate  and  inalienable  use  and  benefit,  and 
that  her  receipts,  whether  she  were  married  or  single, 
should  be  a  good  discharge  to  the  trustees.  Wood,  V.  C, 
ordered  the  fund  to  be  retained.  See  Armitage  v.  Coates, 
35  Beav.  1. 

§  130.  In  Re  Ellis 's  Trusts,  L.  R.  17  Eq.  409,  £500 
three  per  cent  consolidated  annuities  were  bequeathed  to  a 
married  woman,  for  her  separate  use,  without  power  of 
anticipation.  Jcssel,  M.  R.,  held  that  the  legatee,  during 
coverture,  was  entitled  to  the  income  only.  He  thought 
there  was  no  difference  between  real  estate  and  a  fund 
producing  income.  He  expressly  abstained  from  giving  an 
opinion  as  to  what  would  be  the  law  if  the  property  was 
not  producing  income  (p.  414). 

§  131.  In  Re  Croughtoris  Trusts,  8  Ch.  D.  4G0,  the  tes- 
tatrix gave  all  her  real  and  personal  property  to  trustees  in 
trust  to  convert  the  same  into  money,  pay  debts  and  lega- 
cies, and  stand  possessed  of  the  residue  of  the  trust  moneys 
upon  trust  to  invest  the  same  in  certain  securities,  and 
pay  the  income,  to  her  sister  for  life,  and  after  her  death 
upon  trust  to  divide  and  pay  the  said  residue  of  said  trust 
moneys  to  her  nephew  and  niece,  the  latter  of  whom  was 
married.  She  declared  that  every  gift  to  any  woman  was 
for  her  sole  and  separate  use,  and  so  that  she  should  not 
have  power  to  deprive  herself  of  the  benefit  thereof  by  sale, 
mortgage,  charge  or  otherwise  in  the  way  of  anticipation, 


RESTRAINTS  ON   ALIENATION.  129 

and  that  her  receipt  alone  should  be  a  discharge  for  the 
same.  The  testatrix's  sister  had  died  before  her,  and  the 
residue  of  the  estate  had  been  ascertained,  and  was  now 
standing,  uninvested,  in  court.  Bacon,  V.  C,  held  that 
the  direction  to  invest  was  only  for  the  benefit  of  the  sis- 
ter; that  the  gift  to  the  nephew  and  niece  were  really  of 
sums  of  money  ;  and  that  the  niece  was  entitled  to  be  paid 
the  principal. 

§  131  a.  [The  questions  discussed  in  the  foregoing  five 
sections  have  come  frequently  before  the  English  courts 
during  the  last  few  years,  but  it  cannot  be  said  that  the 
result  of  the  decisions  is  entirely  clear.  The  following 
is  ventured  on  as  giving  the  present  condition  of  the 
authorities.] 

§  131  b.  [(1)  When  the  settlor  or  testator  shows  an 
intention  that  the  property  shall  continue  in  the  hands 
of  trustees,  and  there  is  a  clause  against  anticipation,  a 
married  woman  will  not  be  entitled  to  have  the  property 
transferred  to  her,  although  her  interest  be  absolute ;  that 
is,  the  courts  will,  in  the  case  of  a  married  woman,  give 
that  effect  to  the  intention  of  the  settlor  or  testator,  which, 
on  the  ground  of  public  policy,  they  refuse  to  give  in  the 
case  of  other  persons.  Re  Benton,  19  Ch.  D.  277-  Re 
Spencer,  30  Ch.  D.  183.  Re  Greys  Settlements,  31  Ch. 
Div.  85,  712.  Tlppetts  &  Newbould's  Contract,  37  Ch. 
Div.  444.  See  Re  Bown,  27  Ch.  Div.  411 ;  Re  Wood,  01 
L.  T.  N.  S.  197.] 

§  131  c.  [(2)  When  there  is  a  direction  to  pay  and 
divide  moneys  and  securities,  after  an  intervening  life  es- 
tate or  other  intervening  interest,  into  the  hands  of  a  mar- 
ried woman,  and  that  her  receipt  alone  shall  be  sufficient 
discharge,  the  clause  against  anticipation  will  be  considered 

9 


130  RESTRAINTS  OX  ALIENATION. 

as  meant  to  be  confined  to  tlic  continuance  of  the  life  or 
other  interest,  and  as  intended  to  restrain  anticipation  of 
the  trust  property  only  during  that  period,  Be  Sykes'8 
Trusts,  2  J.  &  II.  415,  §  127,  ante.  Re  ( 'roughtoii's  Trust, 
8  Ch.  I).  460,  §  131,  ante.  Re  Bown,  27  Ch.  J)iv.  811. 
Re  Holmes,  67  L.  T.  N.  S.  335.  See  Be  Hutchings,  58 
L.  T.  X.  S.  6.  The  case  of  Be  GaskelVs  Trusts,  11  Jur. 
X.  S.  730,  §  129,  ante,  seems  contra.'] 

§  131  d.  [In  Be  Coombes,  Weekly  Notes  (1383),  1G9,  a 
testator  bequeathed  £20,000  in  trust  to  invest  in  certain 
securities,  to  pay  the  income  to  his  wife  for  life,  and,  on 
her  death,  he  gave  "  the  aforesaid  trust  investments  and 
income  unto  and  equally  between"  certain  persons,  among 
whom  were  the  petitioners,  married  women,  and  he  di- 
rected that  all  benefits  taken  under  his  will  by  any  mar- 
ried woman  should  be  for  her  separate  use,  and,  as  to 
income,  without  power  of  anticipation.  The  money  was 
uninvested  at  the  death  of  the  widow  ;  part  of  it  was  after- 
wards invested.  Bacon,  V.  C,  ordered  the  shares  of  the 
petitioners  to  be  transferred  to  them.  In  this  case  it  is  to 
be  observed  that  there  was  a  direct  gift  of  trust  invest- 
ments, and  not  a  direction  to  pay  and  divide  ;  and  that 
there  was  no  provision  about  the  married  woman's  receipt 
I)  sing  a  discharge;  but  that,  on  the  other  hand,  the  clause 
against  anticipation  was  confined  to  income.  These  differ- 
ences, taken  together,  do  not  seem  sufficient  to  distinguish 
the  case  from  those  in  the  preceding  paragraph,  and  the 
decision  accordingly  would  appear  to  be  correct.] 

§  131  e.  [But  although  there  is  no  occasion  to  quarrel 
with  the  decision  in  the  case  of  Be  Coombes,  it  can  hardly 
stand  on  the  ground  upon  which  it  was  put  by  Bacon,  Y.  ( !. 
Sir  George  Jessel,  in  Be  Ellis's  Trusts,  L.  11.  17  Eq.  409, 


RESTRAINTS   OX   ALIENATION.  131 

had  made  a  suggestion,  though  without  approving  it,  that 
there  might  be  a  difference  between  an  income-producing 
fund  and  money,  and  that  although,  if  there  was  a  clause 
against  anticipation,  the  former  would  not  be  transferred, 
the  latter  might  be.  The  fact  that  the  testator  meant  to 
give  an  income-bearing  fund,  or  that  lie  meant  to  give  cash, 
might  have  a  legitimate  effect  in  determining  what  the 
intention  of  the  testator  was,  and  that  was  probably  what 
Sir  George  Jessel  had  in  mind.  But  to  consider  the  acci- 
dent of  the  condition  in  which  the  fund  happened  to  be  at 
the  period  of  distribution,  as  was  done  by  Vice  Chancellor 
Bacon  in  Re  Coombes,  cannot  be  proper.] 

§  131/.  [This  case  of  Re  Coombes  does  not  seem  to  have 
been  much  noticed  in  the  later  cases,  but  a  decision  to  the 
same  effect  by  Fry,  J.,  in  Re  Clarke's  Trusts,  21  Ch.  D. 
748,  has  been  disapproved  by  the  Court  of  Appeals  in  Re 
Boii'ii,  27  Ch.  Div.  411,  and  the  notion  that  the  condition  of 
the  property  (except  so  far  as  it  may  indicate  the  testator's 
intentions)  has  any  effect  on  the  right  of  a  married  woman 
to  receive  it,  may  be  said  to  be  exploded.  See  Haynes, 
Outlines  of  Eq.  (5th  ed.)  1G8,  note.] 

§  131  g.  [(3)  When  there  is  an  immediate  gift  to  a 
married  woman,  and  yet  there  is  a  clause  against  anticipa- 
tion, what  is  to  be  done?  Here  are  two  irreconcilable 
provisions,  and  yet  the  settlor  or  testator  was  apparently 
unconscious  of  the  inconsistency.  In  Re  Taber,  51  L.  J. 
N.  S.  Ch.  721,  a  testator  bequeathed  £20,000  to  S.,  but  if 
S.  died  in  his  lifetime,  then  to  S.'s  children.  He  gave 
another  sum  of  £20,000  in  trust  to  pay  the  income  to  K., 
who  was  one  of  S.'s  two  children,  for  life,  with  a  gift  over ; 
and  gave  six  annuities,  of  which  five  were  to  women.  He 
also  declared  that  every  bequest  made  for  the  benefit  of  any 


132  RESTRAINTS  ON  ALIENATION. 

female  during  her  coverture  should  be  for  her  separate  use, 
and  without  power  of  anticipation  or  alienation.  S.  died 
in  the  testator's  lifetime.  Bacon,  V.  C,  held  that  K.  was 
entitled  to  the  half  of  the  legacy  to  S.  free  from  the  restraint 
against  anticipation.  In  this  case  there  was  certainly  room 
for  doubt  whether  the  clause  against  anticipation  was  in- 
tended to  apply  to  the  substitutionary  legacy  to  S.'s  chil- 
dren, when  there  were  several  life  interests  to  which  it  was 
apj >r< ) j iriately  a]  »plicablc] 

§  131  h.  [If  there  is  a  simple  gift  of  property,  either  of 
a  particular  security,  Re  Ellis*  Trusts,  17  Ch.  D.  409,  or 
of  a  residue,  Re  Currey,  32  Ch.  D.  301,  with  a  clause 
against  anticipation,  and  there  is  no  direction  that  the 
property  shall  be  paid  or  divided  to  the  married  woman, 
or  that  her  sole  receipt  shall  be  a  sufficient  discharge,  the 
married  woman  will  not  be  entitled  to  have  the  property 
paid  to  her.  It  is  intended  that  she  shall  have  an  inalien- 
able interest ;  this  cannot  be  effected  by  making  her  a  trus- 
tee for  herself,  and  therefore  the  fund  is  retained  in  court, 
or  a  trustee  is  appointed  to  take  it.  So  too  is  Re  Clarke  s 
Trusts,  21  Ch.  D.  748,  where  Fry,  J.,  refused  to  allow 
shares  forming  part  of  a  residue  to  be  transferred  to  a 
married  woman.] 

§  131  i.  [It  must  be  conceded,  however,  that  there  is 
language  used  by  members  of  the  Court  of  Appeals  in  Re 
Bourn,  27  Ch.  Div.  411,  which  is  hardly  consistent  with 
this  view:  "We  must  look  at  the  intention  of  the  testa- 
trix, whether  she  has  indicated  an  intention  that  the  trus- 
tees are  to  keep  the  fund  and  pay  the  married  woman  the 
income"  (p.  423).] 

§  131  j.  [In  Re  Sarel,  10  Jur.  N.  S.  870,  s.  c.  4  New 
Rep.  321,  §  128,  ante,  there  was  an  immediate  gift  to  a 


RESTRAINTS  ON   ALIENATION.  133 

married  woman  of  a  share  of  residuary  personalty  to  be 
paid  into  her  own  hands,  so  as  not  to  be  alienable,  and  her 
receipt  to  be  a  discharge.  The  Court  retained  the  money. 
Here,  on  the  one  hand,  there  was  no  intervening  interest 
to  the  duration  of  which  the  restraint  on  alienation  could 
be  confined ;  while,  on  the  other  hand,  there  was  no  inter- 
vention of  trustees,  and  there  was  a  direction  to  pay  into 
the  married  woman's  own  hands,  and  a  provision  that  her 
discharge  should  be  a  receipt.] 

§  131  k.  [In  Re  Spencer,  30  Ch.  D.  183,  a  testator  di- 
rected trustees  to  pay  an  annuity  to  his  wife,  and  to  accu- 
mulate the  surplus  income  of  his  real  and  personal  property 
during  her  life,  and  on  her  death  he  gave  the  capital  with 
all  accumulations  to  his  children.  He  directed  that  any 
gift  to  a  woman  should  be  for  her  separate  use,  and  with- 
out powrer  of  anticipation  or  alienation  during  the  life  of 
his  wife.  The  children  brought  suit  to  determine  whether 
they  were  not  entitled,  with  the  consent  of  the  widow,  to 
the  present  receipt  and  enjoyment  of  their  shares.  It  was 
held,  by  Pearson,  J.,  that  the  married  daughters  were  not 
"  entitled  to  receive  any  part  of  the  capital,  either  of  the 
original  shares  or  of  the  accumulations,  during  the  life  of 
their  mother.  They  can  only  receive  the  income  of  the 
securities  in  which  the  accumulations  are  invested."  It 
does  not  seem  to  have  been  perceived  that  this  case  goes 
further  than  any  other  has  yet  done.  Married  women  have 
been  restrained  from  anticipating  the  income  of  property 
which  they  owTned  in  fee,  but  never  before  this  has  an  accu- 
mulation of  such  income  been  enforced  against  their  will. 
See  on  the  general  subject  Devitt  v.  Faussett,  7  L.  R.  Ir. 
511 ;  S.  C.  9  L.  R.  Ir.  84  ;  80  Law  Times,  3/2  ;  Lewin,  Trusts 
(9th  ed.),  890,  891 ;  Godefroi,  Trusts  (2d  ed.),  587,  588.] 


134  RESTRAINTS   ON   ALIENATION. 

B. 

ESTATES    IN   FEE    TAIL. 

§  1  .'12.  As  every  condition  against  alienation  or  limitation 
over  upon  alienation  annexed  to  an  estate  tail  is  destroyed 
by  the  barring  of  the  estate  tail  by  a  common  recovery,  so, 
a  fortiori,  &  recovery  will  bar  any  restraint  against  alien- 
ation attached  to  an  estate  tail.  [Be  Golliton  dj  Lander' 
gan,  15  Out.  471-] 

§  133.  In  Cooper  v.  Macdonald,  7  Ch.  Div.  288,  it  was 
held  that  the  tenant  of  an  equitable  estate  tail,  being  a 
married  woman  and  restrained  from  anticipating  the  rents, 
could  bar  the  estate  tail,  but  it  was  said  that  the  restraint 
would  attach  upon  the  rents  of  the  fee  into  which  the 
estate  was  enlarged.  Jessel,  M.  R.,  thought  the  decision 
would  be  the  same,  although  the  will  had  prohibited  the 
alienation  of  the  estate  itself,  and  not  merely  of  the  income. 

C. 

ESTATES   FOR  LIFE. 

§  134.  A  limitation  over  of  a  life  interest  upon  alienation 
is  good ;  but  a  provision,  cither  in  a  deed  or  will,  that  a 
life  tenant  shall  not  alienate  or  anticipate,  —  that  is,  a  pro- 
vision, not  that  he  and  his  assigns  shall  lose  the  estate  on 
alienation,  but  that  he  shall  be  compelled  to  keep  it,  so 
that  neither  his  grantees,  nor  his  creditors,  nor  any  third 
person,  can  get  hold  of  it  or  enjoy  it,  —  is  void.  This  is 
true  whether  the  interest  be  a  legal  or  equitable  one,  and 
whether  it  be  in  realty  or  personalty.  Brandon  v.  Robinson, 
18  Ves.  429 ;  s.  c.  1  Rose,  197.    Graves  v.  Dolphin,  1  Sim. 


RESTRAINTS   OX   ALIENATION.  135 

66.  McCleary  v.  Ellis,  54  Iowa,  311 ;  20  Am.  Law  Reg. 
N.  s.  180  and  note,  ad  fin.  Bridge  v.  Ward,  35  Wis.  687-  * 
[This  is  undoubtedly  correct  so  far  as  legal  interests  are 
concerned.  McCleary  v.  Ellis  and  Bridge  v.  Jl^n/  were 
cases  of  legal  interests,  and  so  were  Butterfield  v.  i?eed,  160 
Mass.  361 ;  Wellington  v.  Janvrin,  60  N.  H.  174  ;  Thomp- 
son v.  Murphy  (Ind.),  37  N.  E.  Rep.  1004;  and  McCor- 
mick  Harvesting  Machine  Co.  v.  Gates,  75  Iowa,  34:;, 
where  the  same  doctrine  was  laid  down.  And  see  Be 
Bourkes  Trusts,  27  Ir.  L.  R.  573,  582,  583  ;  Nash  v.  Simp- 
son, 73  Me.  142,  148;  Warner  v.  Bice,  66  Md.  436,  440. 
And  this  is  so,  even  in  those  States  where  spendthrift  trusts 
are  allowed.  Halm  v.  Hutchinson,  159  Pa.  133,  §  235  g, 
post.  Ehrisman  v.  Sener,  162  Pa.  577-  And  see  Todd  v. 
Sawyer,  147  Mass.  570;  Maynard  v.  Cleaves,  149  Mass. 
307,  §  240/,  ^os#.  The  same  doctrine  is  unquestionably 
true  in  England  of  equitable  interests  also.  Brandon  v. 
Robinson;  Graves  v.  Dolphin;  see  also  TFcrt/e  v.  0///iv, 
32  Beav.  "421;  cf.  Woolley  v.  Preston,  82  Ky.  415.  But 
it  cannot  now  be  said  to  be  universally  true  in  the  United 
States  as  to  equitable  interests.     Vide  post. ~\ 

§  135.  There  is  one  case  in  the  United  States  in  which 
a  fcgal  life  estate  has  been  held  inalienable.  In  Christy  v. 
Pulliam,  17  III.  59,  O.  devised  to  his  wife  L.,  to  hold  for 
life,  "the  land  that  I  now  own  and  reside  on,  to  occupy 
and  use  the  said  land  in  the  same  way  as  it  would  be  law- 
ful for  her  to  do  if  the  title  were  full  and  complete  in  her." 
He  then  gave  part  of  this  land,  after  the  death  of  L.,  to 
certain  relations,  and  added,  "  and  the  land  not  included 
in  above  bequeath  I  give "  to  L.,  "  to  dispose  of  at  her 

1  Perhaps  such  a  provision  is  good  in  a  grant  from  the  Crown.  See 
Fowler  v.  Fowler,  16  Ir.  Ch.  507,  §  21,  note,  ante. 


136  RESTRAINTS   ON   ALIENATION. 

death  to  any  person  she  may  think  best,  to  live  with  and 
take  rare  of  her."  At  the  date  of  the  will,  as  well  as  at 
the  time  of  the  testator's  death,  he  had  no  land  but  the 
homestead.  L.  executed  a  deed,  with  covenant  against 
incumbrances,  purporting  to  convey  to  C.  a  portion  of  the 
land  in  lee  (not  being  that  part  a  remainder  in  which  was 
given  to  the  testator's  relations).  C.  brought  ejectment, 
claiming  a  fee,  against  P.,  a  stranger,  who  was  in  posses- 
si  on  of  the  land.  The  Court  held  that  the  power  given  to 
L.  could  be  exercised  by  will  only,  and  refused  to  allow  the 
deed  to  be  put  in  evidence.  The  jury  accordingly  found 
for  the  defendant.  The  plaintiff  brought  a  writ  of  error, 
and  the  Supreme  Court  in  banc  held  that  the  power  could 
be  exercised  by  deed,  and  remanded  the  case  for  a  new 
trial.  It  is  to  be  observed  that  the  Court  said  that  the 
plaintiff,  having  claimed  a  fee,  could  recover  no  less  estate 
(pp.  02,  03).  See  111.  Rev.  Sts.  (1845),  c.  36.  §§  7,  8; 
111.  Rev.  Sts.  (1874),  c.  45,  §§  12,  13 ;  Ballance  v.  Rankin, 
12  111.  120;  Rawlings  v.  Bailey,  15  111.  178. 

§  13G.  At  the  new  trial  the  deed  was  admitted,  and  the 
plaintiff  had  a  verdict.  The  defendant  appealed.  The 
Court  in  banc,  Pulliam  v.  Christy,  19  111.  331,  the  major- 
ity of  the  Court  having  been  changed,  held  that  the  power 
given  to  L.  could  only  be  executed  by  a  writing  to  become 
operative  at  her  death,  and  set  aside  the  verdict.  They 
say,  "  It  clearly  appearing  it  was  the  intention  of  the  tes- 
tator she  should  not  dispose  of  her  life  estate,  the  deed 
she  has  made  to  the  appellee  can  only  take  effect  at  her 
death,  in  which  event  it  will  operate  to  convey  the  fee,  and 
not  before." 

§  137.  At  the  time  of  the  execution  of  the  deed  C.  had 
given  L.  a  note  for  the  price,  containing  a  condition  that 


RESTRAINTS  OX  ALIENATION.  137 

L.  should  devise  the  land  to  him.  After  the  failure  of  C.'s 
suit  in  ejectment,  L.  brought  ejectment  against  P.,  recov- 
ered judgment,  and  died,  and  C,  to  whom  she  had  devised 
the  land,  was  put  in  possession.  The  executors  of  L. 
brought  suit  on  the  note  against  C,  and  C.  claimed  to  be 
allowed  damages  for  breach  of  the  covenant  against  incum- 
brances in  his  being  kept  out  of  possession  till  after  L.'s 
death.  The  Court,  Christy  v.  Ogle,  33  111.  295,  held  that 
the  covenant  against  incumbrances  was  broken.  They  say, 
"  We  have  decided,  under  the  peculiar  wording  of  that  will, 
that  she  had  an  inalienable  life  estate  in  the  premises, 
which  did  not  pass  by  the  deed";  and  they  held  this  in- 
alienable life  estate  to  be  an  incumbrance. 

§  138.  This  case,  or  rather  series  of  cases,  must  be  bad 
law.  Not  to  speak  of  other  difficulties  with  which  the 
case  bristles,  there  was,  first,  no  ground  for  holding  that 
the  life  estate  was  intended  to  be  inalienable ;  and,  sec- 
ondly, a  life  tenant  of  the  legal  estate  in  land  cannot  be 
restrained  from  alienation.  Not  a  shred  of  authority  in 
favor  of  such  restraint  is  to  be  found  on  either  side  of  the 
Atlantic.  [In  Emerson  v.  Marks,  24  111.  Ap.  642,  an  in- 
ferior court  held  the  land  devised  to  A.  "  to  hold  as  long 
as  she  lives,  without  the  privilege  of  selling  it  to  any  per- 
son "  could  not  be  taken  on  execution  against  A.  The 
Court  docs  not  refer  to  Christy  v.  Ogle,  but  cites  two  cases, 
neither  of  which  is  in  point,  for  in  one  there  was  a  gift 
over  on  alienation,  and  in  the  other  the  interest  was  equi- 
table. The  case  of  Springer  v.  Savage,  143  111.  301,  is  so 
imperfectly  reported  that  it  is  impossible  to  tell  what  is 
the  point  decided.] 

§  139.  In  Marston  v.  Carter,  12  N.  H.  159,  furniture 
was  bequeathed  to  a  married  woman,  "  to  be  for  her  use 


138  RESTRAINTS   OX    ALIENATION. 

and  benefit  during  her  natural  life,  and  after  her  dceease 
to  be  equally  divided  between  her  children."  It  was  held 
that  her  interest  in  the  furniture  could  not  be  attached  at 
law  for  her  husband's  debts.  The  Court  say  that  the  use 
bequeathed  was  "a  personal  right";  that  the  testator 
"  doubtless  reposed  a  personal  confidence  in  those  to  whom 
he  gave  the  use;  and  those  interested  in  the  limitation  over 
have  the  right  to  require  that  the  actual  use  should  be 
confined  to  those  to  whom  he  gave  it.  As  no  security  is 
required  of  a  legatee  for  life,  who  is  entitled  to  the  posses- 
sion, (5  N.  H.  Rep.  326,  Weeks  v.  Weeks,)  none  could  be 
required  of  a  vendee,  if  the  use  should  be  transferred.  It 
is  not  like  a  devise  of  real  estate,  where  the  property  has  a 
fixed  location,  and  where  waste  is  easily  ascertained  and 
a  remedy  may  be  had ;  or  a  bequest  of  personal  property 
producing  an  income,  which  income  may  be  transferred,  or 
taken."  That  is,  the  Court  held  the  nature  of  the  property 
to  be  such  that  the  rights  of  the  remaindermen  required 
that  the  life  tenant  should  retain  personal  charge  of  it. 
The  life  interest  of  the  debtor's  wife  was  deemed  inalien- 
able for  the  sake  of  the  remaindermen,  and  not  for  the  sake 
of  herself  and  husband.  Whether  creditors  could  reach  the 
property  by  a  bill  in  equity  praying  a  sale  and  the  invest- 
ment of  the  proceeds,  was  a  question  raised  by  the  Court, 
but  not  determined.  [Cf.  Lee  v.  Enos,  97  Mich.  276, 
§  296  b,  post.] 

§  140.  The  recognized  exception  to  the  rule  that  provis- 
ions against  alienating  life  interests  are  void,  is  in  the  case  of 
a  married  woman.  About  the  beginning  of  the  eighteenth 
century  equity  established  the  doctrine  of  the  separate  es- 
tate of  married  women,  by  which  they  could  have  equitable 
interests  in  property  apart  from  their  husbands,  and  free 


RESTRAINTS  ON   ALIENATION.  139 

from  their  husbands'  control.  This  doctrine  has  always 
been  distinctly  recognized  as  a  violation  of  the  rules  of*  law, 
introduced  for  the  benefit  of  married  women. 

§1-11.  It  was  found  that  the  doctrine  gave  very  imper- 
fect protection  to  married  women,  because  they  were  still 
in  danger  of  parting  with  their  property  under  the  influence 
or  threats  of  their  husbands,  and  Lord  Thurlow,  at  the  end 
of  the  last  century,  invented  the  clause  against  anticipation, 
which  was  generally  adopted,  and  the  validity  of  which,  it 
was  declared  by  Lord  Eldon,  in  1817,  in  Jackson  v.  Hob- 
house,  2  Mer.  483,  488,  to  be  too  late  to  question.  On 
this  exception  see  §  269,  post. 

§  142.  It  is  only,  however,  in  connection  with  the  sep- 
arate estate  of  a  married  woman  that  this  restraint  upon 
anticipation  has  been  allowed  in  England ;  and  the  general 
doctrine  that  neither  law  nor  equity  allows  any  person,  ex- 
cept a  married  woman,  to  have  an  inalienable  life  interest, 
has  been  constantly  asserted.  Thus,  per  Lord  Cottenham, 
C,  in  the  great  case  of  Tullett  v.  Armstrong,  4  Myl.  &  Cr. 
377,  393,  394,  405  :  "  The  power  [to  prohibit  anticipation] 
could  only  have  been  founded  upon  the  power  of  this  court 
to  model  and  qualify  an  interest  in  property  which  it  had 
itself  created,  without  regard  to  those  rules  which  the  law 
has  established  for  regulating  the  enjoyment  of  property  in 
other  cases."  "  The  separate  estate  and  the  prohibition  of 
anticipation  are  equally  creatures  of  equity,  and  equally  in- 
consistent with  the  ordinary  rules  of  property.  The  one  is 
only  a  restriction  and  qualification  of  the  other.  The  two 
must  stand  or  fall  together."  "  When  this  Court  first  es- 
tablished the  separate  estate,  it  violated  the  laws  of  prop- 
erty as  between  husband  and  wife ;  but  it  was  thought 
beneficial,  and  it  prevailed.     It  being  once  settled  that  a 


140  RESTRAINTS  ON    ALIENATION. 

wife  might  enjoy  separate  estate  as  a  feme  sole,  the  laws  of 
property  attached  to  this  new  estate;  and  it  was  found,  as 
part  of  such  law,  that  the  power  of  alienation  belonged  to 
the  wife,  and  was  destructive  of  the  security  intended  for  it. 
Equity  again  interfered,  and,  by  another  violation  of  the 
laws  of  property,  supported  the  validity  of  the  prohibition 
against  alienation." 

§  L43.  The  desire  that  property  shall  be  kept  in  a  man's 
family,  and  that  his  descendants  shall  enjoy  it,  while  their 
creditors  shall  not,  is  a  feeling  against  the  manifestations 
of  which  the  law  has  contended  for  eenturies.  This  desire 
prompted  the  feudal  lords  to  pass  the  statute  De  Donis  in 
the  thirteenth  century  ;  and  in  recent  times  it  has  induced 
attempts  to  create  inalienable  life  interests,  generally  by 
the  transfer  or  devise  of  property  to  trustees  in  trust  to 
apply  the  income  for  the  support  and  maintenance  of  the 
persons  intended  to  be  benefited,  without  its  being  liable 
for  their  debts.  We  have  now  to  see  how  far,  if  at  all,  by 
such  or  other  devices,  persons  have  succeeded  in  creating 
inalienable  rights.  First,  the  English  cases  will  be  consid- 
ered, and  afterwards  the  American.  The  principal  English 
cases  will  be  taken  up  chronologically. 

^  143  a.  Moyses  v.  Little,  2  Vera.  104  (1690).  A. 
covenanted  that  during  his  own  life  he  would  pay  £15  a 
year  to  B.  B.  became  bankrupt,  and  his  assignee  in 
bankruptcy  brought  a  bill  against  A.  "  to  have  the  benefit 
of  this  agreement."  The  Court  said,  "An  assignee  under 
a  statute  of  bankrupt,  is  not  entitled  to  have  the  perform- 
ance of  an  agreement  made  with  the  bankrupt."  This  case 
has  sometimes  been  cited  as  touching  the  matter  in  ques- 
tion. But  obviously  it  does  nothing  of  the  sort.  It  de- 
cided, rightly  or  wrongly,  that,  under  the  bankrupt  law 


RESTRAINTS   ON  ALIENATION".  141 

then  existing,  the  bankrupt's  rights  in  equity  to  enforce  a 
contract  did  not  pass  to  his  assignee.  If  the  assignment  had 
been  a  voluntary  one,  the  assignee  could  unquestionably 
have  maintained  his  bill.  In  this  case  there  was  no  at- 
tempt to  restrain  the  alienation  of  the  annuity,  and  in  fact 
such  attempted  restraints  were  never  heard  of  till  near  a 
hundred  years  later. 

§  144.  It  has  sometimes  been  intimated  that  the  decis- 
ions of  the  English  Chancery  invalidating  trusts  for  support 
and  maintenance  were  innovations  ;  but  in  fact  such  trusts 
are  themselves  innovations  of  less  than  a  hundred  years 
old.  In  Wood's  Conveyancing  (1790-93)  no  precedents 
of  such  trusts,  so  common  in  conveyancing  treatises  of  the 
present  day,  are  to  be  found.     See  §  147,  infra. 

§  145.  Davidson  v.  Foley,  2  B.  C.  C.  203;  3  B.  C.  C. 
598  (1787-1792).  Lord  Foley,  by  will  made  in  1777,  de- 
vised land  to  trustees  for  long  terms,  and,  on  the  determi- 
nation of  the  terms,  part  of  the  land  to  his  son  Thomas  for 
life,  with  remainders  over,  and  part  to  his  son  Edward  for 
life,  with  remainders  over.  The  trustees  were  to  hold  the 
terms  in  trust  to  pay,  apply,  and  dispose  of  so  much  of  the 
rents  and  profits  as  would  be  sufficient  as  follows :  first, 
according  to  their  will  and  pleasure,  and  not  otherwise,  to 
allow  yearly  to  or  for  the  use  or  benefit  of  his  two  sons  any 
sums,  not  exceeding  in  the  whole  in  any  year  £6,000, 
until  certain  scheduled  debts  of  his  sons  were  paid,  but  so 
as  his  sons,  or  either  of  them,  should  have  no  estate,  right, 
title,  claim,  or  interest  in  the  rents  and  profits  during  their 
lives  and  the  life  of  the  survivor  [other]  than  the  trustees 
should,  in  their  absolute,  free,  and  uncontrolled  power, 
direction,  and  inclination,  think  proper  and  expedient ;  sec- 
ondly, to  pay  the  scheduled  debts,  but  so  as  no  one  of  his 


142  RESTRAINTS  OX  ALIENATION. 

sons'  creditors,  other  than  those  whose  debts  were  sched- 
uled, should  have  a  lien  on  or  power  over  the  lands  ;  and, 
thirdly,  after  the  death  of  the  survivor  of  his  sons  and  the 
payment  of  the  debts,  the  terms  should  wait  on  the  inher- 
itance. The  sons  in  Lord  Foley's  lifetime  sold  to  the 
plaintiffs  annuities  payable  during  the  lives  of  the  sons  and 
the  survivor  at  the  rate  of  seven  years'  purchase,  and  gave 
bonds  conditioned  to  pay  the  annuities.  These  debts  were 
not  scheduled.  Lord  Foley  having  died,  and  the  annuities 
being  unpaid,  the  plaintiffs  got  judgment  on  their  bonds, 
sued  out  elcgits,  and  now  brought  a  bill  against  the  trus- 
tees, alleging  that  the  scheduled  debts  were  paid,  and  pray- 
ing that  the  lands  might  be  delivered  to  them  as  tenants 
by  elegit,  and  the  trustees  enjoined  from  setting  up  the 
terms  against  any  ejectment  the  plaintiffs  might  bring.  The 
defendants  demurred.  Lord  Thurlow  said  (2  B.  C.  C.  213) : 
"I  would  not  willingly  break  in  upon  any  power  given  by 
a  father  to  control  the  extravagance  of  his  sons ;  I  would 
rather  extend  those  powers  than  control  them."  "The  dis- 
cretion of  the  trustees  should  be  extended,  against  such 
plaintiffs  as  these,  as  far  as  possible."1  But  he  thought 
that,  on  the  payment  of  the  scheduled  debts,  there  was  a 
resulting  trust  of  the  terms  to  the  sons,  and  so  he  overruled 
the  demurrer.  At  the  hearing,  it  was  held  that  the  steps 
required  by  1/  Geo.  III.  c.  26,  for  the  validity  of  a  judg- 
ment on  such  annuity  bonds,  had  not  been  complied  with, 
and  the  bill  was  dismissed.  The  validity  of  the  provision 
for  support  and  maintenance  did  not  come  before  the  court. 
On  the  demurrer,  it  was  held  that  such  provision  was  to 

1  The  preamble  to  17  Geo.  III.  e.  26,  recites  that  "the  pernicious  prac- 
tice of  raising  money  by  the  sale  of  life  annuities  hath  of  late  years  greatly 
increased." 


RESTRAINTS   ON   ALIENATION.  143 

continue  in  force  only  until  the  scheduled  debts  were  paid, 
and,  as  these  had  been  paid,  the  trusts  of  the  terms  had 
come  to  an  end,  and  there  were  resulting  trusts  to  the  two 
sons  who  were  tenants  for  life ;  and  at  the  hearing  it  ap- 
peared that  the  plaintiffs'  cause  of  suit  failed  them. 

§  140.  Lord  Thurlow,  in  his  remarks  at  the  argument 
on  the  demurrer,  certainly  seems  to  have  considered  such 
a  trust  valid  ;  but  it  is  to  be  observed  that  the  testator  had 
carefully  excluded  the  sons  from  any  right  against  the  trus- 
tees, and  Lord  Eldon,  who  was  in  1792  at  the  height  of 
his  practice  at  the  bar,  said,  in  Brandon  v.  Robinson,  18 
Vcs.  429,  434 :  "  In  the  case  of  Foley  v.  Burnell,  1  B.  C.  C. 
274  [another  case  on  the  same  will],  this  question  afforded 
much  argument.  A  great  variety  of  clauses  and  means 
was  adopted  by  Lord  Foley,  with  the  view  of  depriving 
the  creditors  of  his  sons  of  any  resort  to  their  property ; 
but  it  was  argued  here,  and  as  I  thought  admitted,  that  if 
the  property  was  given  to  the  sons  it  must  remain  subject 
to  the  incidents  of  property  ;  and  it  could  not  be  preserved 
from  the  creditors  unless  given  to  some  one  else."1 

§  147.  How  unusual  and  surprising  this  provision  was, 
is  shown  by  the  addition  to  Mr.  Butler's  note  to  Co.  Lit. 
223  b,  which  first  appeared  in  the  fourteenth  edition,  1791. 
"  In  Davidson  v.  Foley,  Brown's  Reports  in  Cha.  2  vol. 
203,  the  reader  will  find  a  curious  instance  of  a  trust  under 
which  two  persons  are  become  virtually  entitled  to  a  very 
considerable  annuity,  at  the  same  time  that  the  trust  is  so 
framed  as  to  exclude  their  creditors  from  having  any  charge 
or  lien  upon  the  annuity,  either  at  law  or  equity.  The  illu- 
sory nature  of  estates  and  trusts  of  this  description  raises  a 

1  Rose,  in  his  report  of  Brandon  v.  Robinson,  1  Rose,  197,  199,  gives 
Codrington  v.  Foley,  6  Ves.  364,  as  the  case  referred  to. 


144  RESTRAINTS   ON   ALIENATION. 

powerful  objection  to  them  on  the  ground  of  policy;  nor 
are  they,  perhaps,  quite  reconcilable  to  some  of  the  funda- 
mental principles  of  our  law.  Serious  consequences,  it  is 
presumed,  would  ensue  their  coming  into  general  or  even 
frequent  use."  Mr.  Butler's  "  perhaps  "  carries  a  greater 
weight  of  disapproval  than  most  writers'  confident  asser- 
tions. 

§  148.  There  seems  to  have  been  an  idea  prevalent  at 
this  time,  among  some  of  the  conveyancers,  that  such 
clauses  might  be  sustained.  See  1  Hayes,  Conv.  (5th  ed.) 
506.  And  Sugden,  in  the  first  edition  of  his  book  on  Tow- 
ers, published  in  1808  (when  he  was  twenty-seven  years 
old),  said  (p.  105),  "By  our  law  one  man  may  create  an 
inalienable  personal  trust  in  favor  of  another  for  his  sup- 
port and  maintenance."  But  this  statement  he  struck  out 
in  the  second  edition,  published  in  1815,  and  it  is  there 
said  (pp.  109,  110),  that  "  by  our  law,  if  an  estate  is  given 
to  a  man,  he  must  take  it  with  all  its  incidents  " ;  that  a 
man  may  alien  a  life  estate,  "  notwithstanding  any  declara- 
tion to  the  contrary  in  the  instrument  by  which  the  estate 
is  created  " ;  and  that  "  upon  the  first  introduction  of  the 
words  by  anticipation  [in  a  married  woman's  separate  es- 
tate], it  was,  however,  the  general  opinion  of  the  profession 
that  they  were  simply  void." 

§  149.  Brandon  v.  Robinson,  18  Yes.  429;  1  Rose,  197 
(1811).  A  testator  directed  money  to  be  invested  in  public 
funds  in  the  names  of  trustees,  and  the  income,  as  the  same 
became  payable,  paid  from  time  to  time  into  A.'s  own 
proper  hands,  on  his  own  proper  order  and  receipt,  signed 
with  his  own  proper  hand,  to  the  intent  the  same  should 
not  be  grantable,  transferable,  or  otherwise  assignable  by 
way  of  anticipation,  with  a  gift  over  on  A.'s  death.     A. 


RESTRAINTS   ON   ALIENATION.  145 

became  bankrupt.  Held,  that  his  assignees  were  entitled 
to  his  life  interest.  This  was  followed  by  Barton  v.  Briscoe, 
Jac.  003  ;  Graves  v.  Dolphin,  1  Sim.  60 ;  Woodmeston  v. 
Walker,  2  Russ.  &  M.  197;  Jones  v.  SaZter,  Id.  208; 
Brown  v.  Pocock,  Id.  210;  to  the  same  effect. 

§  150.  Oeew  v.  Spicer,  Taml.  390  ;  s.  c.  1  Russ.  &  M. 
395  (1830).  Devise  to  trustees  on  trust  to  apply  the  rents 
and  profits  to  or  for  the  board,  lodging,  maintenance, 
support,  and  benefit  of  A.,  at  such  times  and  in  such 
manner  as  they  should  think  proper,  during  his  life,  such 
application  to  be  at  the  entire  discretion  of  the  trustees ; 
and  A.  not  to  have  any  power  to  sell  or  mortgage,  or  an- 
ticipate in  any  way,  the  same  rents  and  profits.  A.  took 
the  benefit  of  the  Insolvent  Act.  Held,  by  Sir  John  Leach, 
M.  R.,  that  A.'s  assignees  were  entitled  to  the  rents  and 
profits.     [See  Be  Coleman,  39  Ch.  Div.  443,  452.] 

§  151.  Plercy  v.  Roberts,  1  Myl.  &  K.  4  (1832),  was 
the  gift  of  an  absolute  interest  in  personalty,  not  of  a  life 
interest.     See  the  case  stated,  §  106,  ante. 

§  152.  Snowdon  v.  Dales,  6  Sim.  524  (1834).  £800 
were  given  by  deed  to  trustees  in  trust,  during  the  life  of 
A.,  or  during  such  part  thereof  as  the  trustees  should  think 
proper,  and  at  their  will  and  pleasure,  but  not  otherwise, 
or  at  such  other  time  or  times,  and  in  such  sum  or  sums, 
portion  and  portions,  as  they  should  judge  proper  and  ex- 
pedient, to  allow  and  pay  the  interest  of  the  £800  into  the 
proper  hands  of  the  said  A.,  or  otherwise,  if  they  should 
think  fit,  in  procuring  for  him  diet,  lodging,  wearing  ap- 
parel, and  other  necessaries ;  but  so  that  he  should  not 
have  any  right,  title,  claim,  or  demand  in  or  to  such  inter- 
est other  than  the  trustees  should,  in  their  absolute  and 
uncontrolled  power,  discretion,  and  inclination,  think  proper 

10 


146  RESTRAINTS   ON   ALIENATION. 

or  expedient,  and  so  as  no  creditor  of  his  should  or  might 
have  any  lien  or  claim  thereon  in  any  case,  or  the  same  be 
ill  any  way  subject  or  liable  to  his  debts,  disposition,  or 
engagements  ;  and  after  his  death,  to  his  widow  during  her 
life;  and  after  the  death  of  A.  and  his  widow,  the  £800, 
and  all  savings  or  accumulations  of  interest,  if  any,  should 
be  in  trust  for  his  children  in  equal  shares,  with  benefit  of 
survivorship  on  any  of  them  dying  under  twenty-one ;  but 
if  he  should  have  no  child  who  should  attain  twenty-one, 
then  the  £800  and  all  savings  and  accumulations  of  inter- 
est, if  any,  should  go  over.  A.  became  bankrupt.  His 
assignees  claimed  the  interest  of  the  £800  during  the  bank- 
rupt's life.  Mr.  Bethel,  for  the  assignees,  contended  "  that 
the  words  'savings  and  accumulations'  meant  such  savings 
and  accumulations  as  might  be  made  after  the  death  of  A. 
and  his  widow,  and  until  his  children  attained  twenty-one." 
The  Vice-<  lhancellor,  Shadwell,  seems  to  have  adopted  this 
view,  for  he  held  that  the  trustees  had  no  power  to  with- 
hold any  of  the  income  during  the  life  of  A.,  and  conse- 
quently decreed  that  the  assignees  were  entitled. 

§  153.  In  183"  came  Josselyn  v.  Josselyn,  0  Sim.  63, 
the  first  of  the  series  of  cases  given,  §§  107-112  a,  ante, 
in  which  directions  to  accumulate  income  without  a  gift 
over  have  been  held  void. 

§  154.  Rippon  v.  Norton,  2  Beav.  63  (1839).  Property 
was  given  by  deed  to  trustees  in  trust  for  J.  during  his 
life,  till  his  insolvency,  and  on  his  insolvency  then  to  pay 
and  apply  the  income,  in  such  manner  and  to  such  persons, 
for  the  board,  lodging,  and  subsistence  of  J.  and  his  family, 
as  the  trustees  should  think  proper,  and  on  J.'s  death  over. 
J.  took  the  benefit  of  the  Insolvent  Act.  He  had  three 
children.     His  wife  was  dead.     The  children  claimed  three 


RESTRAINTS  OX   ALIENATION.  147 

fourths  of  the  income,  admitting  that  A.'s  assignee  in  bank- 
ruptcy was  entitled  to  the  other  fourth,  and  Lord  Langdale, 
M.  R.,  decreed  accordingly.  [This  ease  seems  to  be  dis- 
approved in  Be  Coleman,  .*{9  Ch.  Div.  443,  4  18.] 

§  15.").  Page  v.  Way,  3  Beav.  20  (1840).  By  deed, 
real  and  personal  estate  were  given  to  trustees  in  trust  to 
receive  the  rents  and  profits,  "  and  pay  and  apply  the  same, 
when  received,  unto  or  for  the  maintenance  and  support 
of"  A.,  "his  wife  and  children  (if  any);  or  otherwise,  if 
they  should  so  think  proper,  permit  the  same  rents,  etc.  to 
be  received  by  "  A.  for  life,  but  without  power  to  antici- 
pate, and  on  his  death  over.  A.  became  bankrupt.  He 
had  no  children.  Held,  by  Lord  Langdale,  M.  R.,  that 
the  assignees  took  the  whole  income,  subject  to  a  proper 
allowance  for  the  wife,  to  be  settled  by  the  master. 

§  156.  Twopeny  v.  Pet/ton,  10  Sim.  487  (1840).  Prop- 
erty was  devised  to  trustees  in  trust  during  the  life  of  A. 
(who  was  then  a  bankrupt  and  insane,  and  known  by  the 
testator  to  be  so),  to  apply  the  whole  or  such  part  of  the 
interest,  at  such  times,  in  such  proportions,  and  in  such 
manner,  for  the  maintenance  and  support  of  A.  (and  for  no 
other  purpose  whatever),  as  the  trustees  should  in  their 
discretion  think  most  expedient,  and  subject  to  this  trust 
the  property  was  given  to  A.'s  children.  Held,  by  Shad- 
well,  V.  C,  that  A.'s  assignee  in  bankruptcy  was  not  enti- 
tled to  any  part  of  the  income. 

§  157-  Godden  v.  Crowhurst,  10  Sim.  642  (1842).  De- 
vise to  trustees  in  trust  to  pay  and  apply  the  income  for 
the  maintenance  and  support  of  A.  and  any  wife  and  child 
or  children  he  might  have,  and  for  the  education  of  such 
issue,  or  any  of  them,  as  the  trustees  should  in  their  discre- 
tion think  fit ;  and  on  the  death  of  A.  and  his  wife,  then 


148  RESTRAINTS  ON  ALIENATION. 

over.  A.  was  adjudged  a  bankrupt.  Shad  well,  V.  C, 
held  that  the  assignees  in  bankruptcy  took  nothing. 

§  1 58.  Lord  v.  Bunn,  2  V.  &  C.  C.  C.  98  (1843;.  Prop- 
erty was  given  by  deed  to  trustees  in  trust  to  apply,  lay 
out,  and  expend  the  income  in  and  towards  the  mainte- 
nance, clothing,  lodging,  and  support  of  A.  and  his  wife  and 
his  children,  or  any  of  them,  or  otherwise  for  his,  her,  their, 
or  any  of  their  use  and  benefit,  in  such  manner  as  the  trus- 
tees should  in  their  discretion  think  proper,  with  a  gift 
over  upon  A.'s  death.  A.  married,  had  several  children, 
and  took  the  benefit  of  the  Insolvent  Aet.  Knight  Bruce, 
V.  C,  decreed  "  that  the  trustees  have  a  right  to  apply  the 
rents  among  the  insolvent,  his  wife  and  children,  or  any  of 
them,  the  insolvent,  his  wife  and  children,  exclusive  of  any 
other  of  them,"  and  that  any  right  of  the  insolvent  passed 
to  his  assignee.1 

§  159.  Kearsley  v.  Woodcock,  3  Hare,  185  (1843).  Be- 
quest to  trustees  in  trust  to  pay,  apply,  and  dispose  of  the 
income  during  the  life  of  either  M.  or  N.,  for  and  towards 
the  support  and  maintenance  of  A.,  and  of  his  wife  and 
family,  or  otherwise  for  his  or  their  benefit,  in  such  manner 
as  the  trustees  should  think  proper ;  and,  after  the  death 
of  M.  and  N.,  in  trust  to  settle  and  assure,  or  pay  and  ap- 
ply and  dispose  of  the  principal  and  income  to  and  in  trust 
for,  or  for  the  benefit  of,  A.  and  his  family,  in  such  manner 
as  the  trustees  should,  in  their  discretion,  think  proper.  A. 
was  married,  had  children,  and  was  adjudged  a  bankrupt. 
M.  and  N.  were  still  alive.     Wigram,  V.  C,  decreed  that 

1  ["The  Court  here  intimated  a  doubt  whether  more  was  meant"  (in 
Lord  v.  Bunn)  "  than  that  whatever  interest  the  insolvent  had,  if  the  trus- 
tees did  not  exercise  any  discretion,  would  go  to  the  assignee."  Ee  Cole- 
man, 39  Ch.  Div.  443,  448.] 


RESTRAINTS  ON  ALIENATION.  149 

A.  was  not  entitled  to  any  part  of  the  income  separately 
from  his  wife  and  children  ;  and  that  any  interest  of  A.  not 
required  for  the  support  and  maintenance  of  his  wife  and 
children  went  to  the  assignees;  and  he  referred  it  to  the 
master  to  inquire  whether  the  income  was  more  than  suffi- 
cient for  the  maintenance  and  support  of  A.'s  wife  and  chil- 
dren, and  if  so,  by  how  much. 

§  100.  Younghusband  v.  Gisborne,  1  Coll.  400  (1844). 
Devise  to  trustees  in  trust  during  the  life  of  J.  to  raise 
£400  yearly,  and  to  hold  the  same  on  trust  for  the  personal 
support,  clothing,  and  maintenance  of  J.,  so  as  not  to  be 
subject  or  liable  to  any  of  his  creditors,  or  to  his  own  con- 
trol, debts,  or  engagements,  the  annuity  to  be  paid  to  J. 
till  he  should  attempt  to  charge  or  incumber  it,  or  until 
some  one  should  claim  it,  and  from  that  time  to  be  ap- 
plied by  the  trustees,  or  some  person  under  their  direction, 
for  or  towards  the  personal  support,  clothing,  and  main- 
tenance of  J.,  and  for  no  other  purpose  whatsoever.  J. 
took  the  benefit  of  the  Insolvent  Act.  Held,  by  Knight 
Bruce,  V.  C,  that  his  assignees  were  entitled.  He  said, 
"  I  have  no  doubt."  [See  Re  Coleman,  39  Ch.  Div.  443, 
452.] 

§  161.  Rochford  v.  Hachnan,  9  Hare,  475,  480  (1852). 
In  this  case  there  was  a  proviso  for  cesser  (see  §  80,  ante), 
but  Turner,  V.  C,  said  that  it  was  settled,  without  any 
contravention,  "that  property  cannot  be  given  for  life,  any 
more  than  absolutely,  without  the  power  of  alienation  being 
incident  to  the  gift." 

§  1G2.  Wallace  v.  Anderson,  16  Beav.  533  (1853). 
Property  was  given  by  deed  to  trustees  in  trust,  during  the 
life  of  B.,  from  time  to  time  to  pay  and  apply  and  dispose 
of  the  income  in  such  manner,  for  the  maintenance  and 


150  RESTRAINTS  ON   ALIENATION. 

support,  or  otherwise  for  the  benefit,  of  B.  and  his  issue  by 
his  wife  A.,  as  the  trustees  should  think  proper.  In  1848 
the  wife  died,  in  1850  B.  became  bankrupt.  In  1852 
his  only  child  died  without  issue.  No  question  seems  to 
have  been  made  but  that  the  assignees  were  entitled  to  the 
whole  income  after  the  death  of  the  child,  and  Sir  John 
Romilly,  M.  11.,  decreed  this  to  them,  and  also  all  the  bal- 
ance of  the  income  accrued  before  the  death  of  the  child, 
which  had  not  been  properly  applied  for  its  maintenance, 
support,  and  benefit.  The  counsel  for  the  assignees  had 
contended  that  they  were  entitled  to  half  of  the  income 
before  the  death  of  the  child. 

§  1615.  Holmes  v.  Penney,  3  K.  &  J.  90  (1850).  A  life 
interest  belonging  to  C.  was  given  by  him  to  trustees  on 
trust  during  the  life  of  C.  to  pay,  apply,  lay  out,  and  ex- 
pend the  income  in  and  towards  the  maintenance,  cloth- 
ing, lodging,  and  support  of  C,  and  his  present  or  any 
future  wife,  and  his  children,  or  any  of  them,  or  otherwise 
for  their  or  any  of  their  use  and  benefit,  in  such  manner  as 
the  trustees  should  in  their  uncontrolled  discretion  think 
proper.  Held,  by  Wood,  V.  C,  that  he  could  not  decide 
what  proportion  of  the  income  C.'s  wife  and  children  should 
take,  so  as  to  leave  the  rest  of  the  income  to  C.'s  creditors. 
In  this  case,  it  should  be  noticed,  C.  was  the  settlor.  See 
§§  268  a,  208  6,  post. 

§  164.  Re  Sandersons  Trust,  3  K.  &  J.  497  (1857). 
Devise  on  trust  yearly  during  the  life  of  J.  S.  (who  was 
imbecile)  to  pay  and  apply  the  whole  or  any  part  of  the 
rents,  issues,  and  profits  for  and  towards  his  maintenance, 
attendance,  and  comfort.  J.  S.  afterwards  died.  Held, 
by  Wood,  V.  C,  that  J.  S.  had  had  a  right  during  his  life 
to  so  much  of  the  income  as  was  necessary  for  his  comfort, 


RESTRAINTS   ON   ALIENATION".  151 

and  that  the  balance  which  had  not  been  so  employed 
went  to  the  residuary  legatees.  [See  Re  Neil,  62  L.  T. 
N.  S.  649,  651 ;  Be  Stanger,  60  L.  J.  N.  S.  Ch.  326  ;  s.  o. 
64  L.  T.  K  S.  69:5.] 

§  165.  Re  Goes  Trust,  4  K.  &  J.  199  (1858).  Bequest 
to  trustees  on  trust  to  make  a  weekly  allowance  to  S. 
towards  his  maintenance  and  support,  such  allowance  to 
be  in  the  discretion  of  the  trustees.  The  testator  further 
declared,  that  it  should  be  in  the  discretion  of  the  trustees 
to  advance  all  or  any  part  of  the  principal  to  S.,  in  or 
towards  his  maintenance  or  advancement  in  the  world ;  it 
being  his  wish  that  S.  should  have  the  whole  benefit  of 
such  moneys  if  he  should  conduct  himself  steadily  and  to 
the  satisfaction  of  the  trustees,  and  on  his  death,  if  the 
whole  money  had  not  been  advanced,  there  was  a  gift  over. 
S.  made  assignments  of  his  interest.  The  trustees  paid 
the  fund  into  court,  not  suggesting  that  S.  had  conducted 
himself  otherwise  than  steadily  and  to  their  satisfaction. 
Wood,  V.  C,  held  that  there  was  a  gift  of  the  fund  to  S., 
of  which  the  trustees  had  the  discretionary  power  of  depriv- 
ing him,  but  that  they  had  not  exercised  the  power,  and 
that  therefore  S.'s  assignee  was  entitled  to  the  fund.  [See 
Re  Ashbumhams  Trust,  54  L.  T.  N.  S.  84.] 

§  166.  The  principle  upon  which  these  cases  go  is  very 
simple.  Whatever  rights,  legal  or  equitable,  in  property 
a  man  has,  those  rights  are  alienable.  Whatever  a  man 
can  demand  from  his  trustees,  that  his  creditors  can  de- 
mand from  him.  All  the  cases  are  in  accordance  with 
this  principle,  except,  possibly,  the  two  decisions  of  Shad- 
well,  V.  C,  in  Twopeny  v.  Peyton,  10  Sim.  487,  §  156, 
ante;  and  Godden  v.  Croichurst,  Id.  642,  §  157,  ante; 
and  in  the  former  of  these  the  cestui  que  trust  was  known 


152  RESTRAINTS   ON  ALIENATION. 

by  the  testator  to  be  bankrupt  and  insane;  wliilc  in 
the  latter  the  bankrupt's  interest  was  perhaps  not  sepa- 
rable from  that  of  his  family.  See  §  163,  ante,  §  176 
and  note,  post. 

§  1<>7.  It  is  true  that  many  of  these  cases  were  difficult 
to  decide,  and  the  correctness  of  some  of  the  decisions  may 
be  doubtful,  but  the  difficulty  and  the  doubt  did  not  lie  in 
the  application  of  the  principle  that  the  rights  of  the  cestui 
que  trust  were  alienable,  but  in  determining  what  his  rights 
were.  When  property  is  held  by  trustees  to  be  applied  in 
their  discretion  for  the  support  and  maintenance  of  John 
Stiles,  or  of  John  Stiles  and  others,  it  is  often  hard  to  de- 
termine what  the  exact  rights  of  John  Stiles  are  (sec  §  176, 
post),  yet  this  the  courts  cannot  avoid.  If  the  trustees 
refuse  to  supply  John's  needs  or  wishes,  or  do  not  supply 
them  as  liberally  as  he  thinks  they  should,  and  he  com- 
plains to  the  courts,  the  courts  must  determine  whether 
the  trustees  have  violated  any  of  his  rights.  It  is  often  a 
difficult  question,  but  its  difficulty  does  not  excuse  the 
courts  from  passing  upon  it.  And  this  is  the  only  difficulty 
that  arises  in  cases  of  alienation  by  a  cestui  que  trust,  or 
of  his  bankruptcy.  It  may  be  hard  to  determine  to  what 
he  is  entitled,  but  there  is  no  difficulty  in  saying,  whatever 
it  may  be,  it  goes  to  his  assignee.  Whatever  amount  of 
the  trust  fund,  principal  or  income,  a  cestui  que  trust  is 
entitled  to,  so  that  he  or  his  executors  have  a  right  to  it 
against  any  others  of  the  cestuis  que  trust,  that  amount  is 
alienable  by  him ;  and  any  discretion  which  the  trustee 
may  have  as  against  the  cestui  que  trust  in  the  manner  or 
time  of  applying  the  fund,  is  at  an  end.  Such  discretion 
is  imposed  solely  for  the  benefit  of  the  cestui  que  trust, 
not  at  all  for  his  assignee. 


RESTRAINTS  ON  ALIENATION.  153 

§  167  <i.  [Davidson  v.  Chalmers,  33  Beav.  0.">.'5  (1864). 
A  testatrix  directed  that  in  ease  1).,  who  was  then  an  un- 
certificated bankrupt,  "  should  at  any  time  obtain  his  certifi- 
cate, so  as  to  be  enabled  to  hold  and  enjoy  real  and  personal 
estate  for  his  own  absolute  personal  use,  enjoyment,  and 
benefit,"  then  the  income  of  the  residue  of  her  estate  should 
be  paid  by  her  executors  to  D.  during  his  life.  After  the 
death  of  the  testatrix,  D.  received  his  certificate,  and  his 
assignees  in  bankruptcy  demanded  that  the  income  of  the 
residue  should  be  paid  to  them.  Sir  John  Romilly,  M.  R., 
held  that  the  contingent  interest  devised  to  D.  passed  by 
the  assignment,  and  that,  the  contingency  of  receiving  a 
certificate  having  now  occurred,  the  assignees  were  entitled 
to  the  income.  It  was  contended  that  the  testatrix  meant 
her  gift  to  take  effect  when  D.  could  hold  and  enjoy  the 
property  devised.  The  Master  of  the  Rolls  thought  that 
this  was  not  the  true  construction,  and  that  "  if  it  were, 
the  answer  is,  that  that  time  will  never  arrive,  for  it  is  not 
permitted  by  law  to  give  property  in  that  manner."  Be 
Landoris  Trusts,  40  L.  J.  N.  S.  Ch.  3/0  (1871).  The  tes- 
tator directed  his  trustees  to  set  apart  £1,000,  and  either 
to  pay  it  to  L.  or  to  apply  it  for  his  benefit,  or  to  invest  it 
and  pay  or  apply  the  income  for  his  benefit  or  otherwise, 
as  they,  in  their  uncontrolled  discretion,  should  think  fit. 
The  trustees  paid  the  money  into  court,  stating  that  L.  had 
been  adjudicated  a  bankrupt,  and  that  they  were  desirous 
of  exercising  the  discretion  given  to  them.  On  petition  by 
L.'s  assignee  in  bankruptcy  for  the  payment  of  the  sum  to 
him,  Lord  Romilly,  M.  R.,  held  that  the  trustees  had  not 
lost  their  discretion,  and  ordered  the  money  paid  out  of 
court  to  them.] 

§  167  b.    [In  re  Coleman,  39  Ch.  Div.  443  (1888),  a  tes- 


154  RESTRAINTS  ON  ALIENATION. 

tator  gave  his  residuary  estate  to  trustees  in  trust  "to 
apply'  the  income  "in  and  towards  the  maintenance,  edu- 
cation, and  advancement  of  my  children  in  such  manner  as 
they  shall  deem  most  expedient,'  until  the  youngest  of  the 
children  reached  twenty-one,  and  then  to  distribute  the 
estate  equally  between  all  the  children  then  living.  There 
were  four  children,  two  of  whom  had  not  reached  twenty- 
one.  A.,  one  of  the  two  children  who  were  of  age,  assigned 
all  his  interest  under  the  will  of  the  testator.  The  trustees 
had  always  applied  the  income  in  equal  shares  for  the  ben- 
efit of  the  four  children,  paying  one  fourth  directly  to  each 
of  the  adults,  but  on  receiving  notice  of  the  assignment  by 
A.,  they  continued  to  apply  three  fourths  of  the  income  for 
the  benefit  of  the  other  children,  and  kept  one  fourth  in 
hand.  The  assignee  applied  for  a  decision  whether  A.  had 
an  interest  in  the  income  which  would  pass  by  the  assign- 
ment. North,  J.,  held  that  the  assignee  could  not  call 
upon  the  trustees  to  pay  him  one  fourth  of  the  income. 
The  order,  as  drawn  up,  declared  that  no  child  was  entitled, 
before  the  youngest  reached  twenty-one,  to  payment  of,  or 
had  a  transmissible  interest  in,  any  part  of  the  income  of 
the  residue ;  that  the  assignee  had  no  claim,  prior  to  that 
event,  against  the  trustees  for  income ;  and  that  the  trus- 
tees were  entitled  to  employ  the  income  for  the  benefit  and 
maintenance  of  the  children,  including  A.,  at  their  absolute 
discretion.     The  assignee  appealed.] 

§  16/ c.  [At  the  hearing  before  the  Court  of  Appeal, 
Fry,  J.,  asked  the  counsel  for  the  infant  children  whether 
they  would  be  satisfied  with  these  declarations :  1.  That 
no  child  before  the  youngest  reaches  twenty-one  is  entitled 
to  the  payment  of  any  part  of  the  income.  2.  That  the 
trustees  are  entitled  to  apply  the  income  for  the  mainte- 


RESTRAINTS    ON    ALIENATION.  L55 

nance,  education,  o2  advancement  of  tlic  children,  including 
A.,  in  their  absolute  discretion.  'A.  That  the  assignee  is 
entitled  to  no  interest  in  the  income,  except  such  moneys 
or  property,  if  any,  as  may  be  paid,  or  delivered  or  appro- 
priated for  payment  or  delivery  by  the  trustees  to  A.  The 
counsel  for  the  infant  children  said  they  would  be  satisfied 
with  these  declarations.  The  trustees  then  said  that  they 
wished  it  decided  whether  they  could  send  out  goods  to 
A.,  who  was  in  Australia,  and  they  submitted  that  they 
could.  The  Court  were  of  opinion  that  some  alteration  in 
the  terms  of  North,  J.'s  order  was  requisite ;  that  no  child 
had  a  right  to  any  share  of  the  income ;  that,  assuming 
that  the  trustees  could  not  exclude  a  child,  they  could  allot 
him  as  little  as  they  thought  desirable;  that  the  assign- 
ment did  not  include  every  benefit  which  the  trustees  might 
give  to  A.  out  of  the  income  :  "  If  the  trustees  were  to 
pay  an  hotel-keeper  to  give  him  a  dinner,  he  would  get 
nothing  but  the  right  to  eat  a  dinner,  and  that  is  not  prop- 
erty which  could  pass  by  assignment  or  bankruptcy.  But 
if  they  pay  or  deliver  money  or  goods  to  him,  or  appropri- 
ate money  or  goods  to  be  paid  or  delivered  to  him,  the 
money  or  goods  would  pass  by  the  assignment;"  that  the 
declaration  proposed  by  Fry,  J.,  was  right ;  and  that 
the  trustees  would  not  be  at  liberty  to  send  over  money 
or  goods  to  A.  The  Court  distinguished  Green  v. 
Spicer  and  Younghusband  v.  Gisborne,  §§  150,  160, 
ante,  on  the  ground  that  in  those  cases  the  income 
was  directed  to  be  applied  solely  for  the  benefit  of  the 
insolvent.] 

§  167  d.  [Re  Neil,  62  L.  T.  N.  S.  649.  A  testator  gave 
property  to  trustees  in  trust  during  the  life  of  P.  to  pay 
and  apply  the  whole  or  any  part  of  the  income  or  accunmla- 


L56  RESTRAINTS   ON  ALIENATION. 

tions  of  income  for  the  support,  maintenance;  or  education, 
or  otherwise  for  the  benefit  of  P.,  his  wife  and  children,  or 
any  or  more  of  them,  the  said  A.,  his  wife  and  children,  in 
such  manner  in  all  respects  as  the  trustees  should  in  their 
uncontrolled  discretion  think  fit,  and  from  time  to  time  to 
accumulate  all  the  residue  of  the  income  not  applied  under 
such  discretionary  power,  or,  if  no  part  of  the  income  was 
so  applied,  then  the  whole  of  the  income,  by  investing  the 
same  and  the  resulting  income.  Provided  that  the  trustees 
should  have  power  to  resort  to  any  part  of  the  accumula- 
tions for  the  purpose  of  applying  them  as  authorized  by  the 
discretionary  trust,  and,  subject  to  such  proviso,  that  all 
such  accumulations  should  be  added  to  the  capital  to  be 
inseparably  blended  therewith,  and,  on  the  death  of  P.,  in 
trust  for  the  benefit  of  third  persons.  P.  assigned  all  his 
interest  under  the  testator's  will  as  security  for  a  debt,  and 
the  trustees  had  notice  thereof,  but,  notwithstanding,  they 
continued  to  pay  weekly  sums  to  P.  on  account  of  his 
share.] 

§  167  e.  [The  assignee  prayed  the  Court :  First,  that  the 
trustees  might  be  directed  out  of  the  income  accrued  and 
to  accrue  due  to  P.  under  the  trust  to  pay  the  debt  due 
from  P.  to  the  assignee.  Second,  that  the  trustees  should 
account  to  the  assignee  for  the  amounts  they  had  paid  to 
P.  after  they  had  notice  of  the  assignment.  The  Court, 
following  Be  Coleman,  refused  the  first  prayer,  but  granted 
the  second. 

§  167/  [Be  Bullock,  60  L.  J.  N.  S.  Ch.  341  ;  s.  c.  64 
L.  T.  N.  S.  736.  A  testatrix  directed  trustees  to  hold  a  fund 
ir.  trust  to  pay  the  income  to  A.  until  he  should  become  a 
bankrupt  or  cease  to  be  entitled  to  receive  such  income  for 
his  own  benefit,  and  then  in  trust  "  to  pay  to  him  or  apply 


RESTRAINTS  ON   ALIENATION.  157 

for  his  benefit,  during  the  remainder  of  bis  life,  either  the 
whole,  or  so  much  and  so  much  only  of  the  said  income  as  ' 
the  trustees  or  trustee  "shall  in  their  or  his  uncontrolled 
discretion  think  tit ;  "  and,  subject  to  such  interest  of  A.,  to 
hold  the  fund  and  the  investments  and  income,  including 
any  accumulations  of  income,  in  trust  for  A.'s  children,  and 
if  no  such  children,  then  to  third  persons.  After  the  death 
of  the  testatrix,  A.,  in  January  1889,  charged  his  inter- 
est under  the  will  to  secure  a  debt  due  from  him  to  L., 
but  the  trustees  did  not  receive  notice  of  the  charge  till 
August  181)0.  The  income  was  paid  to  A.  up  to  July  1890. 
In  October  1890,  A.  was  made  a  bankrupt.  The  trustees 
applied  to  the  Court,  asking  whether  they  might  apply  the 
whole,  or  any  and  what  part,  of  the  income  in  providing  in 
such  manner  as  they  might  from  time  to  time  think  fit  for 
the  past  and  future  lodging,  board,  clothing,  maintenance, 
and  support  of  A.,  and  the  payment  of  sundry  legal  ex- 
penses incurred  by  him  or  on  his  behalf  since  July  1890. 
L.  claimed  the  income  which  had  accrued  after  the  assign- 
ment to  him  in  January  1889,  but  before  the  notice  was 
given  to  the  trustees  in  August,  1890,  on  the  ground  that 
the  assignment  was  not  perfect  till  notice  was  given.  He 
made  no  claim  to  the  income  after  August  1890.  The 
assignee  in  bankruptcy  made  no  claim.] 

§  16/  (J.  [Kekewich,  J.,  ruled  against  L.,  on  the  ground 
that  the  assignment  to  him  operated  from  its  date  as  a 
cesser  of  the  right  to  receive  the  income.  He  remarked 
that  he  thought  the  assignee  in  bankruptcy  was  well  ad- 
vised not  to  make  any  claim,  and  that  he  could  see  no  ten- 
able argument  for  such  a  claim,  and  that  the  question  was 
between  A.  and  those  entitled  under  the  gift  over,  who 
contended  that  the  language  oY  the  will  only  empowered 


158  RESTRAINTS  ON   ALIENATION. 

the  trustees  to  pay  the  income  to  A.  or  to  apply  it  for  his 
benefit,  and  that  neither  of  these  things  eonld  be  done. 
He  held  that  to  pay  income  to  A.  would  be  no  discharge 
to  the  trustees,  and  would  render  them  accountable  to  the 
assignee  in  bankruptcy.  But  he  also  thought  that  they 
might  "  spend  the  whole  or  any  part  of  the  income  in  main- 
tenance, using  that  word  in  its  general  and  widest  sense, 
and  I  doubt  whether  I  was  right  in  saying  in  the  course 
of  the  argument  that  they  could  not  properly  pay"  A.'s 
"  debts."] 

§  167  h.  [It  is  difficult  to  see  how  in  this  case  those 
interested  in  the  gift  over  had  any  right  against  the  trus- 
tees. These  last  were  authorized  by  the  will  to  pay  the 
whole  of  the  income  to  A.,  and  whether  this  accrued  to 
the  benefit  of  A.  or  of  his  assignee  in  bankruptcy  was  no 
concern  of  those  in  remainder.] 

§  1(57  i.  [A  case  on  which  reliance  is  placed  in  Re  Bul- 
lock is  Chambers  v.  Smith,  3  A  p.  Cas.  795,  but  it  does  not 
seem  to  throw  light  on  the  question.  It  was  a  case  from 
Scotland.  Property  had  been  given  to  trustees  in  trust  to 
transfer  it  to  A.,  but  power  was  given  to  them,  at  their  dis- 
cretion, to  hold  the  property  in  trust  to  pay  the  income  to 
A.,  and  the  capital  on  his  death  to  his  issue,  on  such  con- 
ditions and  restrictions  as  to  the  trustees  might  seem  fit. 
A  judgment  was  recovered  against  A.,  and  afterwards  the 
trustees  declared  that  they  would  hold  the  property  in  trust 
to  pay  the  interest  only  to  A.  for  his  aliment.  Alimentary 
funds,  that  is,  spendthrift  trusts,  are  allowed  in  Scotland. 
Paterson,  English  and  Scotch  Law,  §  931.  It  was  held 
that  A.'s  judgment  creditor  could  not  lay  hold  of  the  fund. 
Lord  Ilatherley,  C,  said  (p.  806)  that  the  law  of  Scotland 
was  in  "  no  way  different  from  that  of  England  with  refer- 


RESTRAINTS  OK    ALIENATION.  159 

ence  to  the  effect  of  an  arrest  of  a  debtor's  interest  in  the 
hands  of  third  parties.  It  has  been  long  settled  in  England 
that  a  judgment  creditor  must  take  his  debtors  interest 
Bubject  to  all  charges  and  modifications  to  which  it  is  sub- 
ject in  the  debtor's  own  hands."  Lord  Hatherley  does  not 
mean  that  a  provision  lor  aliment  is  good  in  England,  but 
that  by  the  law  of  England,  if  a  trustee  has  a  right  to 
change  the  trusts  of  a  fund  against  a  cestui  que  trust,  he 
has  the  same  right  against  the  cestui  que  trust's  creditor.] 

§  167  j.  [The  law,  as  at  present  contained  in  the  Eng- 
lish books,  seems  to  be  as  follows  :  — 

1.  If  the  income  of  trust  property  is  to  be  paid  to  A. 
during  his  life,  a  direction  that  it  shall  be  paid  into  his  own 
hands,  or  that  he  shall  not  alienate  or  anticipate  it,  or  that 
it  shall  not  be  liable  for  his  debts,  is  void.  Brandon  v. 
Bobinson,  Barton  v.  Briscoe,  Graves  v.  Dolphin,  Wood- 
meston  v.  Walker,  Jones  v.  Salter,  Brown  v.  Pocock. 

2.  If  trustees  are  directed  to  apply  the  income  of  a  trust 
fund  for  the  support  and  benefit  of  A.  at  such  times  and 
manner  as  they  may  deem  fit,  but  have  no  authority  to 
apply  it  in  any  other  way,  his  assignee  can  demand  the 
income  from  the  trustees.  Green  v.  Spicer,  Snowdon  v. 
Dales,  Younghusband  v.  Gisborne.  See,  however,  the  re- 
marks of  Kekewich,  J.,  in  Be  Bullock,  CO  L.  J.  Ch.  X.  S. 
341,  343,  344.  In  Twopeny  v.  Peyton,  Shad  well,  V.  C, 
thought  that  the  whole  income  was  not  payable  to  the 
lunatic. 

3.  If  trustees  are  directed  to  apply  the  income  of  a  trust 
fund  for  the  support  or  benefit  of  A.  and  other  purposes, 
but  they  have  no  right  to  exclude  A.,  then  A.'s  assignee  can 
claim  from  the  trustees  the  amount  which  A.  could  have 
claimed   should   be  applied  for  his  benefit.      Rippon   v. 


160  RESTRAINTS  ON   ALIENATION. 

Norton,  Page  v.  Way,  Kearsley  v.  Woodcock,  Wallace  v. 
Anderson.  But  sec  the  remark  of  Fry,  J.,  in  /tV  Coleman, 
.'{!)  ( !h.  Div.  44.S,  44J5.  Godden  v.  Crowhurst  is  contra,  but 
seethe  language  of  Knight  Bruce,  V.  C,  in  Younghusband 
v.  Gisborne. 

4.  If  trustees  are  directed  to  apply  the  income  of  a  trust 
fund  for  the  support  or  benefit  of  A.,  or  for  other  purposes 
at  their  discretion,  and  they  in  fact  apply  the  whole  of  the 
income  for  other  purposes,  the  assignee  of  A.  has  no  claim 
against  the  trustees.  Lord  v.  Bunn,  Holmes  v.  Penney. 
See  Twopeny  v.  Peyton. 

5.  If  trustees  are  directed  to  pay  the  income  of  a  trust 
fund  to  A.,  or  to  apply  it  for  his  support  or  benefit,  or  for 
other  purposes  at  their  discretion,  they  must  account  to 
A.'s  assignee  for  any  payments  made  to  A.  after  notice  of 
the  assignment.     Lord  v.  Bunn,  lie  Coleman,  Re  Neil. 

6.  If  trustees  are  directed  to  apply  the  income  of  a  trust 
fund  for  the  support  or  benefit  of  A.,  or  for  other  purposes 
at  their  discretion,  must  they  account  to  A.'s  assignee  for 
any  sums  not  paid  to  him  but  spent  for  his  support  or 
benefit  after  notice  of  the  assignment?  There  seems  to 
be  no  difference  in  principle  between  this  case  and  No.  2, 
supra.  If  the  assignee  of  A.  can  demand  from  the 
trustees  the  money  which  they  are  bound  to  spend  for 
the  support  or  benefit  of  A.,  they  ought  to  account  to 
him  for  money  which  they  have  so  spent.  Xo.  2  has 
the  authority  of  Sir  John  Leach,  M.  R.,  Vice  Chancel- 
lor Shadwell,  and  Vice  Chancellor  Knight  Bruce.  But 
sec  Be  Bullock  and  Godden  v.  Crowhurst.  In  lie  Cole- 
man  there  is  the  most  authoritative  utterance  on  the  ques- 
tion. In  the  Court  of  Appeal,  Cotton,  L.  J.,  said :  "  Does 
the  assignment  include  every  benefit  which  the  trustees  give 


RESTRAINTS   ON   ALIENATION.  161 

to  J.  S.  Coleman  out  of  the  income?  1  think  not.  If  the 
trustees  were  to  pay  an  hotel-keeper  to  give  him  a  dinner, 
he  would  get  nothing  but  the  right  to  eat  a  dinner,  and  that 
is  not  property  which  eould  pass  by  assignment  or  bank- 
ruptcy. But  if  they  pay  <>r  deliver  money  to  him,  or  appro- 
priate money  or  goods  to  be  paid  or  delivered  to  him,  the 
money  or  goods  would  pass  by  the  assignment."  And  he 
distinguished  Green  v.  Spier  and  Younghusband  v.  Gis- 
borne  on  the  ground  that  "  in  those  cases  the  income  was 
directed  to  be  applied  solely  for  the  benefit  of  the  insolvent, 
which  made  it  his  property."  But  this  last  distinction,  as 
has  been  remarked  above,  seems  immaterial ;  and  as  to  the 
benefits  which  it  is  said  the  trustees  can  still  give  to  the 
spendthrift  or  bankrupt,  doubtless  there  are  rights  which 
do  not  pass  to  an  assignee  in  bankruptcy.  A  man  may  be 
a  member  of  a  club,  and  as  such  may  have  a  right  to  sit 
in  the  clubhouse,  and  on  stated  days  to  eat  a  dinner  with- 
out paying  for  it ;  and  this  right  cannot  pass  to  an  assignee: 
but  a  trust  fund  does  not  produce  dinners  in  specie  ;  it  pro- 
duces only  money  with  which  indeed  dinners  can  be  bought, 
but  which  also  can  be  assigned.  According  to  the  Court  of 
Appeal,  if  the  trustees  buy  a  loaf  of  bread  or  a  bottle  of 
wine  and  give  it  to  their  cestui  que  trust  to  eat  or  drink, 
they  must  account  for  its  value  ;  but  if  they  tell  him  to  go 
into  a  bread  or  wine  shop  and  help  himself,  they  need  not 
account  for  what  they  pay  the  shopkeeper.  The  distinction 
drawrn  to  so  fine  an  edge  does  not  seem  sound,  and  it  is 
submitted  that  the  true  rule  is  that  the  trustees  must  ac- 
count to  the  assignee  for  all  moneys  that  they  have  paid  to 
the  cestui  que  trust,  or  have  expended  for  his  benefit  or 
support.     See  §  279,  j)ost.] 

§  168.   The  decisions  of  the  English  Chancery  which 

n 


162  RESTRAINTS  ON  ALIENATION. 

have  been  cited  do  not  set  forth,  as  lias  sometimes  been 
hinted,  an\  novel  doctrines.  They  are  simply  applications 
of  a  principle  older  than  Taltarum's  ( 'ase.  They  arc  a  part 
of  the  struggle  of  the  law  against  feudalism,  and  against 
the  attempt  to  give  the  enjoyment  of  wealth  without  its 
responsibilities.  They  are  modern  only  because  the  special 
form  of  dishonesty,  family  pride,  and  sentimentalism  at 
which  they  are  aimed  is  modern. 

"Queritur  ut  crescunt  tot  magna  volumina  legis 
In  promptu  causa  est,  crescit  in  orbe  dolus." 

The  soundness  of  these  decisions  will  be  further  considered 
when  the  American  cases  have  been  examined.  See  also 
§§  14:5,  144,  ante. 

§  109.  Before  considering  the  American  eases  in  which 
the  validity  of  equitable  life  estates  has  been  dealt  with, 
two  things  must  be  premised  with  regard  to  the  remedy  of 
creditors.  And  it  is  the  more  important  to  do  this,  be- 
cause, from  failure  to  observe  the  nature  of  the  remedy 
sought,  inferences  have  been  drawn  from  certain  cases 
which  they  do  not  legitimately  support. 

$  17<».  First.  Wherever  there  is  now  a  Bankrupt  or 
Insolvent  Act,  it  is  safe  to  say  that  under  it  equitable  in- 
terests of  the  bankrupt  or  insolvent  debtor  pass  to  his 
assignee ;  but  where  there  is  no  such  Act,  or  in  cases 
where  it  is  not  called  into  operation,  there  has  been  some 
uncertainty  how  far  a  creditor  can  proceed  against  his 
debtor's  equitable  estate.  Generally,  in  the  United  States, 
a  creditor  can  have  his  debt  satisfied  out  of  his  debtor's 
equitable  interests  by  filing  a  bill  in  equity,  or  by  some 
statutory  proceeding.  He  is  usually  required  to  reduce  his 
debt  to  judgment  (see  Armstrong  v.  Pitts,  13  Grat.  235, 


RESTRAINTS  ON  ALIENATION.  163 

§  248,  post),  although  in  Massachusetts  he  can,  in  certain 
cases,  under  Pub.  Sts.  c.  151,  §  2,  cl.  11,  maintain  a  bill  to 
reach  his  debtor's  equitable  interests  without  first  obtain- 
ing judgment.  Crompton  v.  Anthony,  13  Allen,  33.  But 
see  Carver  v.  Peck,  131  Mass.  291  ;  [Russell  v.  Milton, 
133  Mass.  180;  Powers  v.  Raymond,  137  Mass.  483.] 
Compare  also  Kempton  v.  Hallowell,  24  Ga.  52,  59;  [Kent 
v.  Curtis,  4  Mo.  Ap.  121.]  If  at  the  present  day  in  any 
one  of  the  United  States  there  is  no  remedy  for  a  creditor 
against  the  equitable  interests  of  his  debtor,  of  course  in 
such  State  equitable  interests  which  grantors  or  testators 
have  declared  inalienable  cannot  be  reached  by  creditors, 
not  because  they  are  inalienable,  but  because  they  are  equi- 
table. Had  they  been  expressly  declared  to  be  alienable, 
the  result  would  be  the  same.  The  question  of  the  validity 
of  the  provision  against  alienation  is  never  reached. 

§  171.  Second.  Equitable  interests  cannot  be  taken  on 
execution  at  law  against  the  cestuis  que  trust.1  Therefore, 
a  decision  that  property  given  to  trustees  for  the  support 
of  A.  cannot  be  taken  on  an  execution  against  A.,  is  not  a 

1  By  ancient  usage,  in  New  Hampshire  equitable  estates  in  land  can  be 
taken  on  execution.  Pritchard  v.  Brown,  4  N.  H.  397.  Upham  v.  Varney, 
15  N.  H.  462.  Hutchins  v.  Heywood,  50  N.  H.  491.  In  Alabama  equi- 
table interests  in  personalty  can  be  taken  on  execution.  Lamb  v.  Wragg, 
8  Port.  73.  Williams  v.  Jones,  2  Ala.  314.  Carleton  v.  Banks,  7  Ala.  32. 
Branch  Bank  v.  Wilkins,  Id.  589.  Cook  v.  Kennerly,  12  Ala.  42.  Clarke 
v.  Windham,  Id.  798.  (But  see  Spear  v.  Walkley,  10  Ala.  328.)  In  Con- 
necticut equitable  estates  in  land  and  interests  in  personalty  can  both  be 
taken  on  execution.  Davenport  v.  Lacon,  17  Conn.  278.  Johnson,  v.  Conn. 
Bank,  21  Conn.  148.  [But  see  Tolland  County  Ins.  Co.  v.  Underwood, 
50  Conn.  493,  §  199  b,  post.  So  under  the  California  Code.  Kennedy  v. 
Nunan,  52  Cal.  326  ;  Le  Roy  v.  Dunkerly,  54  Cal.  452.  And  in  Kentucky, 
under  Gen.  Sts.  (1873)  c.  63,  art.  1,  §  21,  equitable  interests  in  land  can  be 
taken  on  execution.  Anderson  v.  Briscoe,  12  Bush,  344.  For  the  law  in 
Pennsylvania,  see  §  216  a,  post.] 


164  RESTRAINTS   ON   ALIENATION. 

decision  that  A.'s  interest  is  inalienable,  or  that  it  cannot 
be  reached  by  bill  in  equity,  but  simply  that  an  equitable 
interest  cannot  be  taken  on  execution  at  law.  Bice  v.  Bur- 
nett, Speer,  Eq.  579.  Toor  v.  Hodges,  Id.  593.  Boberts  v. 
Hall,  35  Vt.  28.  Scott  v.  Gibbon,  :>  Munf.  {Hi.  Scott  v. 
Loraine,  (5  Muni".  117.  Boanes  v.  Archer,  1  Leigh,  .">:»<>. 
Henderson  v.  7////,  9  Lea,  2.").  Gamble  v.  Dabney,  20  Tex. 
(39.  M'llvaine  v.  Smith,  42  Mo.  45.  [Putter  v.  Coin-It, 
141  U.  S.  29G,  319.  Jennings  v.  Coleman,  59  Ga.  718.] 
In  several  of  these  cases  it  is  suggested  that  there  might 
be  a  remedy  in  equity.  See  ifo'ce  v.  Burnett,  Ioor  v. 
JIni/i/es,  Boberts  v.  /A'//,  Boanes  v.  Archer,  (Jumble  v. 
Dabney,  M'llvaine  v.  Smith,  [and  Jennings  v.  Coleman. 
Cf.  Cruger  v.  Coleman,  75  Ga.  695.] ] 

§  172.  When  the  trustee  is  one  of  the  cestuis  que  trust, 
the  authorities  differ  on  the  question  whether  he  has  any 
interest  which  can  be  taken  on  execution.  In  New  Jersey, 
in  /,W/r.s  v.  ,S7«te  ^ras*  Co.,  12  C.  E.  Green,  308,  there  was 
a  devise  to  A.  and  his  wife  of  the  use  and  full  enjoyment 
of  real  and  personal  estate  during  their  joint  lives,  for  their 
support,  and  the  support,  maintenance,  and  education  of 
their  children,  witli  remainder  to  the  children.  The  inter- 
est of  A.  in  the  estate  was  seized  on  execution  against  him. 
Tt  was  held  that  the  sale  would  not  be  enjoined,  for  that 
A.  took  a  beneficial  interest,  and  so  far  as  he  had  such  in- 
terest it  united  with  his  legal  estate,  and  gave  him  an  inter- 
est which  could  be  taken  on  execution.  And  see  1/obb.s 
v.  Smith,  15  Ohio  St.  419,  where  there  wras  a  devise  to  A. 

1  In  Lindsay  v.  Harrison,  8  Ark.  302,  a  slave  given  to  trustees  in  trust 
for  a  woman  absolutely,  and  by  them  delivered  to  her,  was  held  subject  to 
execution  for  her  husband's  debts.  But  this  was  because  the  Court  held  the 
legal  title  to  have  passed  to  her. 


RESTRAINTS  ON  ALIENATION.  165 

for  ninety-nine  years,  remainder  to  his  children  should  he 
have  any,  A.  to  support  himself  and  his  family,  if  he  ever 
had  one,  from  the  land,  and  the  land  not  to  be  taken  on 
execution  for  A.'s  debts.  A.  never  had  any  family,  and 
the  land  was  sold  on  execution  against  him.  It  was  held 
that  the  term  for  ninety-nine  years  passed  to  the  purchaser 
at  the  sheriff's  sale,  subject,  at  the  most,  to  an  equitable 
claim  by  some  of  A.'s  family  to  support,  and  that  it  would 
be  time  enough  to  decide  such  a  claim  when  it  was  pre- 
sented. In  South  Carolina,  on  the  other  hand,  Jones  v. 
Fort,  1  Rich.  Eq.  50,  slaves  were  conveyed  to  A.  in  trust 
for  the  use  of  A.  and  his  wife  during  his  wife's  life,  and  on 
her  death  over,  and  it  was  held  that  A.  had  no  interest 
which  could  be  taken  on  execution.  And  the  same  ruling 
was  made  in  Wylie  v.  White,  10  Rich.  Eq.  294,  where 
there  was  a  bequest  to  A.  for  life  of  the  use  and  benefit  of 
slaves,  the  slaves  not  to  be  disposed  of  by  him  or  any  other 
person  whatsoever,  but  to  remain  exclusively  for  the  annual 
support  of  A.  and  his  family  ;  the  Court  adding,  that  what- 
ever remedy  A.'s  creditors  had  against  his  interest  in  the 
slaves  was  in  equity.1  So  in  Alabama,  Fellows  v.  Tann, 
9  Ala.  999.  A  slave  girl  was  conveyed  by  deed  to  J.,  "  and 
the  heirs  of  her  body,  ...  on  the  following  terms,  that 
is  to  say :  I  leave  the  said  girl  to  J.  during  her,  the  said 
J.'s,  natural  life,  forever,  and  the  heirs  of  her  body,  with 
this  condition,  that  the  said  girl  shall  be  under  the  entire 
control  and  management  of  J.  in  the  most  profitable  and 
useful  way,  for  the  use  and  support  of  J.  and  her  heirs, 
during  their  natural  life.  After  the  death  of  the  said  J. 
the  said  negro  girl  shall  be  equally  divided  among  the  heirs 

1  A  remedy  was  given  in  equity  in  a  like  case,  Crcighton  v.  Clifford,  6 
S.  Car.  188. 


163  RESTRAINTS  ON   ALIENATION. 

of  the  said  J."  J.  afterwards  married.  Held  that  the 
Blave  could  not  he  taken  on  execution  against  J.'s  husbaud. 
Whether  the  wile's  interest  could  be  reached  by  the  hus- 
band's creditors  on  a  bill  in  equity  was  a  matter  on  which 
the  ( lourt  declined  to  express  an  opinion.  See  M'Laurine 
v.  Monroe,  30  Mo.  4(52;  White  v.  White,  30  Vt.  338; 
[Tolland  County  Ins.  Go.  v.  Underwood,  50  Conn.  493, 
§  199  6,  post;  Cummings  v.  Corey,  58  Mich.  494;  Chase 
v.  Currier,  03  N.  II.  90  ;  Durant  v.  Mass.  Hospital  Life 
I  its.  Co.,  2  Lowell,  575,  §  266,  post.] 

§  173.  As  an  equitable  interest  cannot  be  taken  on  exe- 
cution, so  it  is  not  the  subject  of  garnishment  on  foreign 
attachment,  or,  as  it  is  generally  called  in  New  England, 
trustee  process.  [ White  v.  Jenkins,  10  Mass.  (52.  Brigden 
v.  Gill,  Id.  5:22.  Hinckley  v.  Williams,  1  Cush.  490.] 
Weller  v.  IJVAr,  18  Vt.  55.  White  v.  JWte,  30  Vt.  338. 
[,s7r//>  v.  Whitehead,  111  111.  24".  Banfield  v.  Wiggin, 
58  N.  H.  155.  C/ws*  v.  Currier,  03  N.  H.  90.  Drake, 
Attachm.  (7th  cd.)  §  454  6.  Sec  §  114  a,  ante,  sub  fin.] 
In  Pennsylvania,  however,  property  was  given  in  trust  to 
pay  the  income  to  A.  for  his  life,  for  his  own  use  and  bene- 
fit, or  to  such  person  as  he  might  authorize,  and  the  trustee 
was  summoned  as  garnishee  of  A.  The  Court  held  that 
the  trust  fund  was  liable  to  A.'s  creditors.  Girard  Ins.  Co. 
v.  Chambers,  46  Pa.  St.  485.     See  §  227,  post. 

§  174.  The  Statute  of  Frauds  (29  Car.  II.  c.  3),  §  10, 
enacted  that  execution  might  be  had  of  all  "  such  lands, 
tenements,  rectories,  tithes,  rents,  and  hereditaments  as 
any  other  person  or  persons  be  in  any  manner  or  wise 
seised  or  possessed,  or  hereafter  shall  be  seised  or  pos- 
sessed, in  trust  for  him  against  whom  execution  is  so  sued." 
This  section  of  the  statute  has  been  re-enacted  in  several 


RESTRAINTS  ON  ALIENATION.  167 

of  the  United  States,  but  it  has  everywhere  been  held  to 
apply  only  when  the  cestui  que  trust  has  the  entire  equi- 
table interest.  Doe  d.  Hull  v.  Greenhill,  4  B.  &  Aid. 
684.  Harris  v.  Booker,  4  Bing.  96.  Harris  v.  Pugh,  Id. 
335.  Lynch  v.  Utica  Lis.  Co.,  18  Wend.  236.  Ontario 
Bank  v.  Root,  3  Paige,  4/8.  Brown  v.  Graves,  4  Hawks, 
342.     Battle  v.  Petway,  5  Ired.  576.     Thompson  v.  i^W, 

7  Ired.  418.  And  see  Presley  v.  Rodgers,  24  Miss.  520. 
[Among  other  cases  holding  the  same  doctrine  are  Forth 
v.  Norfolk,  4  Mad.  503  ;  Modisett  v.  Johnson,  2  Blackf. 
431  ;  Bogart  v.  Prtf/w,  1  Johns.  Ch.  52  ;  s.  c.  17  Johns. 
351  ;  Jackson  v.  Bateman,  2  Wend.  570  ;  Bristow  v.  il/c- 
Ca/Z,  16  S.  Car.  545  ;  &Attfe  v.  Harden,  1  Yerg.  1.  See 
IF/ii/e  v.  Kavanagh,  8  Rich.  377  ;  Mcllvaine  v.  Smith,  42 
Mo.  45.]  And  therefore  an  equitable  life  estate  cannot  be 
taken  on  execution  under  this  statute.1 

§  175.  Having  eliminated  these  cases,  we  have  now  to 
take  up  the  American  authorities  bearing  on  the  question 
how  far  equitable  rights,  declared  or  intended  to  be  in- 
alienable, can  be  assigned  by  a  cestui  que  trust,  or  made 
available  for  his  creditors  by  proper  proceedings  in  equity. 
Decisions  or  dicta  upon  this  question  are  to  be  found  in 
[twenty-four]  of  the  United  States,  —  Alabama,  Arkansas, 
Connecticut,  [Delaware,]  Georgia,  [Illinois,  Indiana,]  Ken- 
tucky, [Maine,  Maryland,]  Massachusetts,  [Mississippi,] 
Missouri,  New  Jersey,  New  York,  North  Carolina,  Ohio, 
Pennsylvania,  Rhode  Island,  South  Carolina,  Tennessee, 
Vermont,  Virginia,  and  Wisconsin. 

1  This  provision  of  the  Statute  of  Frauds,  it  should  also  be  observed, 
applies  only  to  realty  ;  it  does  not  affect  chattels  real.     Scott  v.  Scholey, 

8  East,  467.  Melcalfv.  Scholey,  2  R.  &  P.  N.  R.  461.  Or  chattels  per- 
8onal.  Caillaud  v.  Estwick,  2  Anst.  381.  HcndricJc  v.  Robinson,  2  Johns. 
Ch.  263,  312. 


168  RESTRAINTS  ON   ALIENATION. 

§  17<>-  In  some  cases  the  trusts  which  have  come  up 
for  decision  have  been  for  the  benefit  of  more  than  one 
cestui  que  trust ;  —  e.  g.,  husband  and  wife,  or  mother  and 
children.  The  cases,  English  and  American,  in  which  the 
question  of  separable  interests  has  been  considered  are 
Rippon  v.  Norton,  2  Beav.  (i.'J,  §  154,  ante;  Page  v.  Way, 
3  Beav.  20,  §  155,  ante ;  Godden  v.  ( 'rowhurst,  10  Sim.  6  I-', 
§  157,  ante;  Lord  v.  B«m«,  2  V.  ec  C.  C.  C.  98,  §  158, 
ante;  Kearsley  v.  Woodcock,  3  Hare,  18.3,  §  159,  awfe; 
UW/^rr  v.  Anderson,  16  Beav.  5:5:5,  £  162,  emte  ;  Holmes  v. 
Penney,  3  K.  &  J.  90,  §  163,  awte;  [AV  Landoris  Trusts, 
40  L.  J.  N.  S.  Ch.  370,  §  107  «,  ante;  ifo  Ashbumham's 
Trust,  54  L.  T.  N.  S.  84;  7.V  Coleman,  39  Ch.  Div.  448, 
§  107  6,  ante;  ifo  iVc^V,  02  L.  T.  N.  S.  049,  §  107  d,  ante  : 
Re  Bullock,  00  L.J.N.  S.  Ch.  341,  §  167/,  ante;]  Kemp- 
ton  v.  Hallowell,  24  Ga.  52,  58,  §  184, post ;  Rugely  v.  Rob- 
inson, 10  Ala.  702,  §  185, post ;  Hill  v.  McRae,  27  Ala.  175, 
§  186,  juwtf  ;  Robertson  v.  Johnston,  80  Ala.  197,  §  187, 
y/o.s/  ;  Jones  v.  Tfeese,  05  Ala.  134,  §  188,  jws/;  [Bell  v. 
UV///.///N.  82  Ala.  512,  §  188a,  post;  Tolland  County  Ins. 
Co.  v.  Underwood,  50  Conn.  493,  §  199  i,  £>os£ ;]  CW;//  v. 
Ferguson,  3  J.  J.  Marsh.  204,  §  203,  post;  Flournoy  v. 
Johnson,  7  B.  Monr.  093,  090,  §  118,  ante,  §  204,  #os*; 
[Ooma'e  v.  Bull,  81  Ky.  040  ;  IJ^wr  v.  />'/«',  00  Md.  436, 
§.240k,post;]  Foster  x.  Foster,  133  Mass.  179,  §  240 c, 
post;  [Slat tery  v.  Pfasow,  151  Mass.  200,  §  240/,  post; 
Nichols  v.  tfafcm,  91  U.  S.  710,  §§  251  et  seqq.,  post;] 
hum  at  v.  Mass.  IIosj).  Life  Ins.  Co.,  2  Lowell,  575,  §  200, 
post;  [Raynoldsv.  Hanna,  55  Fed.  Rep.  783;  s.  c.  sub 
nam.  Brooks  v.  Raynolds,  59  Fed.  Rep.  923,  §§  207  dr- 
267  f,  post  .]  also  a  series  of  cases  in  Virginia,  see  §§  241- 
249,  post ;  and  the  cases  cited  in  §  172,  ante. 


RESTRAINTS   ON  ALIENATION.  169 

§  177.  [In  the  former  edition,  after  it  had  been  said 
that  decisions  or  dicta  on  the  question  of  the  possibility  of 
restraining  the  alienation  of  equitable  life  estates  were  to 
be  found  in  eighteen  States,  and  that  in  Virginia  no  case 
of  a  separable  interest  had  occurred,  the  following  state- 
ment was  made.]  In  eleven  of  the  other  seventeen  States, 
the  question  has  been  decided  ;  in  six  there  are  only  dicta. 
Of  the  eleven  States  in  which  decisions  have  been  made, 
the  courts  of  eight  have  held  all  restraints  against  aliena- 
tion on  equitable  life  interests  invalid.  In  one  State  the 
decisions  are  conflicting,  the  latest  being  in  accord  with 
the  doctrine  generally  held.  In  only  twro  States  are  such 
restraints  held  legal.  Such  restraints  have  been  adjudged 
bad  in  Rhode  Island,  New  York,  North  Carolina,  South 
Carolina,  Georgia,  Alabama,  Tennessee,  and  Ohio ;  in 
Kentucky  the  decisions  conflict ; 1  and'in  Pennsylvania  and 
Massachusetts  "  spendthrift  trusts,"  so  called,  are  allowed. 
Of  the  six  States  in  which  dicta  only  are  to  be  found,  in 
New  Jersey,  Missouri,  Arkansas,  and  Wisconsin,  they 
accord  with  the  weight  of  authority ;  in  Vermont  a  dictum 
has  been  supposed,  probably  incorrectly,  to  be  to  the  con- 
trary ; 2  and  in  Connecticut  they  conflict,3  —  that  is,  the 
decisions  and  dicta  in  twelve  States  are  against  the  validity 
of  such  restrictions  ;  in  two,  or  at  the  most  three  States, 
they  favor  them ;  and  in  two  they  conflict ;  the  later  de- 

3  The  one  case  in  favor  of  the  validity,  White  v.  Thomas,  8  Bush,  661, 
is  opposed  to  several  cases,  both  earlier  and  later. 

2  This  single  dictum  in  White  v.  White,  30  Vt.  338,  sometimes  cited 
as  favoring  the  validity  of  such  restrictions,  will  be  shown  to  have  no  such 
meaning. 

3  But  the  earlier  dicta  in  Lcavitt  v.  Bcimc,  21  Conn.  1,  in  favor  of  the 
validity,  are  overruled  by  later  dicta  to  the  contrary.  Easterly  v.  Keneij, 
30  Conn.  18,  19,  22. 


170  RESTRAINTS  <>N   ALIENATION". 

cisions  and  dicta  in  these  last  two  States  being  against  the 
validity. 

§  1/7  (i-  [But  this  statement  would  be  far  from  giving 
correctly  the  state  of  the  law  at  the  present  day.  Of  the 
twenty-four  States  in  which  the  question  has  now  been 
discussed,  it  has  been  decided  in  sixteen  ;  in  eight  there 
are  only  dicta.  Of  the  sixteen  States  in  which  decisions 
have  been  had,  the  courts  of  eight  have  held  restraints 
against  alienation  on  equitable  life  estates  bad,  and  in  eight 
States  they  have  been  held  good.  Such  restraints  have 
been  adjudged  bad  in  Rhode  Island,  New  York,  North 
Carolina,  South  Carolina,  Georgia,  Alabama,  Ohio,  and 
Kentucky ;  while  in  Pennsylvania,  Massachusetts,  Illi- 
nois, Maine,  Maryland,  Mississippi,  Vermont,  and  Missouri 
"spendthrift  trusts,"  so  called,  are  allowed.  Of  the  eight 
States  in  which  dicta  only  are  to  be  found,  in  'Sew  Jersey 
and  Arkansas  the  dicta  are  against  the  validity  of  such 
restraints  ;  in  Tennessee,  Delaware,  Indiana,  and  Virginia 
they  are  in  favor  of  them  ;  in  Wisconsin  and  Connecticut 
the  language  of  the  cases  is  conflicting ;  that  is,  the  de- 
cisions and  dicta  in  ten  States  are  against  the  validity,  and 
in  twelve  States  are  for  it ;  while  in  two  States  they  are 
conflicting.] 

^  L78.  The  most  convenient  mode  of  considering  the 
cases  will  be  to  take  them  by  States.  I.  Restrictions  on 
alienation  invalid.  (A.)  Decisions:  Rhode  Island,  New 
York,  North  Carolina,  South  Carolina,  Georgia,  Alabama, 
Ohio,  Kentucky.  (B.)  Dicta:  New  Jersey,  Arkansas. — 
II.  Conflicting.  Dicta:  Wisconsin,  Connecticut.  —  III. 
Restrictions  on  alienation  valid.  (A.)  Decisions:  Penn- 
sylvania, Massachusetts,  Illinois,  Maine,  Maryland,  Missis- 
sippi, Vermont,  and  Missouri.      (B.)  Dicta :   Tennessee, 


RESTRAINTS   OX   ALIENATION.  171 

Delaware,  Indiana,  and  Virginia.  After  the  States  will  be 
considered  the  decisions  and  dicta  in  the  Federal  courts. 

§  1/9.  Rhode  Island.  —  Tillinghast  v.  Bradford,  5 
R.  I.  205.  Devise  to  T.  in  trust  to  pay  the  income  to  II. 
for  life,  the  payments  to  be  made  from  time  to  time,  not 
in  the  way  of  anticipation,  nor  to  his  assigns,  and  to  be 
for  his  sole  and  separate  use.  H.  assigned  all  his  estate 
for  the  benefit  of  his  creditors.  It  was  held,  after  very  full 
argument,  that  the  assignee  was  entitled  to  have  the  in- 
come paid  over  to  him  during  II. 's  life.  The  Court  say : 
"  This  has  been  the  settled  doctrine  of  a  court  of  chancery, 
at  least  since  Brandon  v.  Robinson,  18  Ves.  429,  and,  in 
application  to  such  a  case  as  this,  is  so  honest  and  just 
that  we  would  not  change  it  if  we  could.  Certainly  no 
man  should  have  an  estate  to  live  on,  but  not  an  estate  to 
pay  his  debts  with.  Certainly  property  available  for  the 
purposes  of  pleasure  or  profit  should  be  also  amenable  to 
the  demands  of  justice."  [See  Ryder  v.  Sisson,  7  R.  I. 
341.] 

§  179  a.  [Stone  v.  Westcott,  29  Atl.  R.  838.  A  testa- 
trix empowered  her  executors  in  their  discretion  to  sell  or 
mortgage  any  of  her  real  estate,  and  apply  from  the  pro- 
ceeds, for  the  benefit  of  her  husband,  such  sums  and  in 
such  manner  as  they  might  deem  best.  The  Supreme 
Court  of  Rhode  Island  held  that  the  power  in  the  executors 
was  purely  discretionary,  and  that  they  could  not  be  com- 
pelled to  exercise  it  at  the  suit  of  the  husbands  creditors.] 

§  180.  New  York.  —  The  rules  of  law  and  equity  with 
regard  to  trusts  were  wholly  abrogated  in  New  York  by 
the  Revised  Statutes  of  1828,  which  now  govern  the 
entire  subject ;  and  therefore  the  decisions  of  the  courts 
would  throw  no  light  on  the  question  we  are  now  con- 


172  RESTRAINTS   ON   ALIENATION". 

sidering,  were  there  not  fortunately  a  case  which  fell  out- 
side the  Revised  Statutes,  and  which  shows  that  the 
doctrines  of  equity  were  fully  accepted  in  that  State.1 
In  Bryan  v.  Knickerbocker,  1  Barb.  Ch.  409,  by  deed 
executed  before  the  Revised  Statutes,  and  to  which  there- 
fore they  did  not  apply,  real  and  personal  property  were 
given  to  trustees  in  trust,  to  apply,  from  time  to  time,  so 
much  of  the  rents  and  income  to  the  use  and  support  of 
the  grantor,  and  of  his  family,  if  he  should  marry  and  have 
a  family,  during  his  life,  as  the  trustees  should  deem  dis- 
creet and  reasonable,  and  to  accumulate  the  residue  of  the 
rents  and  income  for  the  benefit  of  the  grantor's  heirs. 
The  grantor  never  married,  and  the  trustees  allowed  him 
$900  a  year,  and  accumulated  the  residue.  It  was  held 
by  Ruggles,  V.  C,  and  on  appeal  by  Walworth,  C,  that 
this  allowance  was  liable  for  the  grantor's  debts.  The 
case  was  not  rested,  as  in  truth  it  might  well  have  been, 
on  the  ground  that  the  trust,  being  created  by  the 
grantor,  was  wholly  void  as  to  him,  but  was  treated  as  if 
the  trust  had  been  created  by  a  stranger,  and  the  decision 
was  supported  by  Green  v.  Spicer,  1  Russ.  &  Myl.  395, 
and  Piercy  v.  Roberts,  1  Myl.  &  K.  4. 

§  L81.  Besides  this  decision  the  dicta  in  New  York  arc 
to  the  same  effect.  In  Ha  mis  v.  Heahj,  15  Barb.  29G, 
property  was  given  to  IT.  in  trust  "  for  the  benefit  of  my 
son  J.,  and  to  be  paid  to  him  in  small  sums,  for  the  sup- 
port of  himself  and  family,  or  otherwise  as  said  II.  shall 
decide,  or  for  a  home  to  be  kept  in  trust  for  said  J."  It 
was  held  that  the  property  could  be  reached  by  judgment 

i  The  decisions  under  the  New  York  Statutes,  which  are  sometimes 
wrohgly  referred  to,  as  if  they  bore  on  the  general  question,  are  collected 
in  Appendix  I. 


RESTRAINTS  ON  ALIENATION.  173 

creditors,  the  provisions  of  the  statutes  with  regard  to 
inalienability  of  trust  estates  applying  only  to  life  interests. 
The  Court  said  :  "  The  cases  of  Green  v.  Spicer,  Piercy  v. 
Roberts,  and  Snowdon  v.  Dales  have  been  repeatedly 
sanctioned  by  our  courts  as  containing  the  true  rule,  and 
are  decisive  of  this  case."  In  Bramhall  v.  Ferris,  14 
N.  Y.  41,  44,  Comstock,  J.,  said  that,  if  a  bequest  had 
been  given  "  absolutely  for  life,  with  no  provision  for  its 
earlier  termination,  and  no  limitation  over  in  the  event 
specified,  any  attempt  of  the  testator  to  make  the  interest 
of  the  beneficiary  inalienable,  or  to  withdraw  it  from  the 
claims  of  creditors,  would  have  been  nugatory.  Such  an 
attempt  would  be  clearly  repugnant  to  the  estate  in  fact 
devised  or  bequeathed,  and  would  be  ineffectual  for  that 
reason,  as  well  as  upon  the  policy  of  the  law.  The  Black- 
stone  Bank  v.  Davis,  21  Pick.  42.  Hallett  v.  Thompson, 
5  Paige,  583.  Graves  v.  Dolphin,  1  Sim.  66.  Brandon  v. 
Robinson,  18  Ves.  429."  And  in  Rome  Exchange  Bank 
v.  Eames,  4  Abb.  Ct.  App.  83,  99,  Denio,  C.  J.,  said : 
"  It  is  against  general  principles  that  one  should  hold 
property,  or  a  beneficial  interest  in  property,  by  such  a  title 
that  creditors  cannot  touch  it.  But  our  statute  expressly 
permits  such  arrangements."  See  too  Hallett  v.  Thomp- 
son, 5  Paige,  583,  citing  with  approval  Graves  v.  Dolphin, 
Brandon  v.  Robinson,  Green  v.  Spicer,  and  Piercy  v. 
Roberts ;  and  compare  Degraw  v.  Clason,  11  Paige,  136  ; 
Graff  v.  Bonnett,  31  N.  Y.  9,  25,  per  Denio,  C.  J. ;  Brown 
v.  Harris,  25  Barb.  134  ;  Ireland  v.  Ireland,  18  Hun, 
362. 

§  182.  North  Carolina.  —  Property  was  devised  to  T. 
in  trust  to  apply  annually  the  rents  and  profits  to  the  use 
and  benefit  of  C.  during  C.'s  life,  "  so  that  they  be  not  sub- 


174  RESTRAINTS   ON    ALIENATION. 

ject  to  be  sold  or  disposed  of  by"  C,  or  ''anticipated  by 
him,  or  be  in  any  manner  subject  to  his  debts  or  contracts." 
Held,  that  C.'s  interest  was  assignable.  Dick  v.  Pitchford, 
1  Dev.  ec  Bat.  Eq.  480.  Bequest  to  trustees  in  trust  for 
the  use  and  support  of  \V.  and  S.  for  their  lives,  to  be  ap- 
plied to  their  support,  and  not  to  be  subject  to  their  dis- 
posal or  debts.  W.  died.  Held  that  S.'s  interest  was 
assignable.  Pace  v.  Pace,  73  N.  C.  119.  See  dicta  ac- 
cordingly in  Bank  of  the  State  v.  Forney,  2  Ired.  Eq.  181, 
184,  and  especially  in  Mebane  v.  Mebane,  4  Ired.  Eq.  131, 
where  the  interest  was  absolute,  and  not  for  life.  [But 
see  Monroe  v.  Trenholm,  112  N.  C.  684;  114  N.  C.  590, 
§§  124  s  -124/?,  ante.'] 

§  188.  South  Carolina.  —  Heath  v.  Bishop,  4  Rich.  Eq. 
40.  Property  was  conveyed  to  T.  in  trust  to  pay  to  C. 
the  net  income  "  for  the  better  support  and  maintenance 
of  the  said.C,"  and  on  C.'s  death  over.  The  Court  held 
that  C.'s  interest  was  liable  in  equity  for  his  debts,  citing 
the  cases  in  the  English  Chancery,  and  laying  down  the 
doctrines  of  equity  with  clearness  and  precision.  [See 
Wylie  v.  White,  10  Rich.  Eq.  294.] 

§  184.  Georgia. — Kempton  v.  Hallowell,  24  Ga.  52. 
Property  of  a  woman  was  at  her  marriage  settled  on  trus- 
tees in  trust  to  and  for  the  joint  use  and  benefit  of  husband 
and  wife,  during  their  joint  lives,  but  not  to  be  subject  in 
any  way  or  manner  to  the  debts,  contracts,  or  engagements 
of  the  husband.  It  was  held  that  the  husband's  interest 
in  the  income  could  be  reached  in  equity  by  his  creditors. 
In  Bailie  v.  McWhorter,  56  Ga.  183,  property  was  devised 
to  trustees  in  trust  for  the  sole  use  and  benefit  of  A.  during 
his  life,  permitting  him,  in  the  discretion  of  the  trustees,  to 
have  such  control  over  the  property,  and  such  only,  as 


RESTRAINTS   ON   ALIENATION.  175 

might  be  compatible  with  preserving  it  unimpaired  for  his 
maintenance,  free  from  all  liability  for  any  of  his  debts  or 
contracts,  and  on  his  death  over.  Held  that  the  income 
of  the  trust  fund  was  liable  for  the  debts  of  the  cestui  que 
trust,  and  that  a  receiver  should  be  appointed.  [See 
Mathews  v.  Paradise,  74  Ga.  523.] 

§  185.  Alabama.  —  Rugely  v.  Robinson,  10  Ala.  702. 
Devise  to  A.  and  his  heirs,  in  trust  for  the  benefit  of  E., 
"  but  the  same  shall  not  be  subject  to  the  payment  of  any 
debt  that  he  may  owe,  but  the  same  shall  be  held  for  the 
use  and  benefit  of  E.  and  his  family,"  during  E.'s  life,  and 
on  his  death  over.  Held,  that  so  far  as  the  gift  included 
property  which  was  intended  to  be  used  jointly  by  E.  and 
his  family,  in  specie,  as  a  house,  furniture,  etc.,  it  was  in- 
capable of  severance,  and  could  not  be  reached  by  E.'s 
creditors  ;  that  so  far  as  it  consisted  of  other  property  E. 
and  his  family  took  equal  shares  ;  and  that  E.'s  share  was 
subject  in  equity  to  the  payment  of  his  debts.  Collier, 
C.  J.,  dissented,  on  the  ground  that  the  interest  of  E.  was 
not  separable  from  that  of  his  family ;  but  all  the  judges 
fully  recognized  the  soundness  of  Brandon  v.  Robinson. 
See  s.  c.  19  Ala.  404. 

§  186.  Hill  v.  McRae,  27  Ala.  175.  Devise  to  L.  in 
trust  for  the  use  and  benefit  of  T.,  the  same  to  be  held, 
used,  and  managed  by  L.,  L.  from  time  to  time  to  pay  over 
to  T.  such  part  of  the  income  (or  the  whole  thereof  if  re- 
quired) as  might  be  "  necessary  for  the  comfortable  and 
reasonable  support  of  the  said  T.,  and  of  his  wife  and 
children,  should  he  have  any,  the  same  to  be  used  by  the 
said  T.,"  and  L.  was  "  expressly  forbidden  to  pay  any  of 
the  debts  of  the  said  T.,"  and  on  TVs  death  over.  T. 
afterwards  married.     Held  that  T.'s  interest  could  not  be 


176  RESTRAINTS  ON  ALIENATION. 

reached  by  a  judgment  creditor,  on  the  ground  tluit  it  was 
not  separable  from  his  wile's. 

§  187.  Robertson  v.  Johnston,  :?o'  Ala.  197-  Property 
was  held  in  trust  for  the  use  and  behoof  of  Delilah  John- 
ston, and  the  heirs  of  her  body  begotten  or  to  be  begotten, 
free  from  her  husbands  control  and  debts,  and  upon  further 
trust  that  the  trustee  should  and  would  permit  all  or  Mich 
portion  of  said  property  to  be  under  the  control  of  said  De- 
lilah as  "may  be  necessary  for  the  comfort  and  welfare  of 
her  and  her  children,"  but  the  trustee  to  have  the  right  to 
take  possession  of  the  property  should  he  deem  it  necessary 
or  proper,  and  so  to  employ  and  manage  the  same  as  should 
be  to  the  true  interest  and  benefit  of  the  said  Delilah  and 
her  children,  with  a  gift  over  at  her  death  to  her  husband, 
if  she  died  before  him  without  issue.  The  husband  died. 
Held  that  Delilah's  share  of  the  income  was  liable  to  her 
debts. 

§  188.  Jones  v.  Reese,  65  Ala.  134.  Devise  to  1).  in 
trust  "  for  the  use,  benefit,  and  behoof"  of  the  testator's 
son  L.  for  life,  "  the  rents  and  profits  thereof  to  be  dis- 
creetly used  for  the  genteel  and  comfortable  support  and 
maintenance  of  my  said  son,  also  for  any  family  he  may 
hereafter  have ;  and  whenever  there  shall  accrue  any  sur- 
plus of  rents  and  profits,  not  needed  for  the  purposes  above 
set  forth,  then  the  said  trustee  shall  invest  the  same  judi- 
ciously, with  the  same  uses,  trusts,  and  limitations  here 
made.  It  is  distinctly  my  will  that  in  no  event  shall  the 
corpus  of  the  property  bequeathed  and  devised  unto  my 
said  son,  or  any  investment  of  property  made  as  above 
directed  by  the  said  trustee,  ever  be  liable  for  the  debts 
and  contracts  by  him,  my  said  son,  nor  shall  the  rents  and 
profits  be  liable,  only  on  contracts  for  necessaries  " ;  and 


RESTRAINTS  ON  ALIENATION.  177 

on  L.'s  death  over.  Held  that  a  mortgage  by  L.  and  his 
wife  on  their  interest  in  the  property,  although  not  for 
necessaries,  was  valid,  and  that  their  interest  was  sepa- 
rable from  that  of  their  children.  Hill  v.  McRae,  27  Ala. 
175,  was  distinguished  on  the  ground  that  the  interest  of 
the  debtor  was  in  that  case  not  separable  from  the  interest 
of  others.  The  same  decision  has  been  made  in  the  case 
of  absolute  interests.  Smith  v.  Moore,  37  Ala.  32/. 
Taylor  v.  Harwell,  65  Ala.  1.      See  §§  115,  117,  ante. 

§  188  a.  [Bell  v.  Watkins,  82  Ala.  512.  Deed  by 
which  land  valued  at  $2,400  was  conveyed  to  T.  in  trust 
that  he  should  hold  the  land  for  the  use  of  J.,  his  wife  and 
children,  during  the  life  of  J.  and  his  wife,  and  permit  J. 
to  use,  occupy,  and  cultivate  the  land  for  the  use  and 
benefit  of  his  wife  and  children,  for  their  support  and 
the  education  of  the  children.  On  a  bill  by  a  judgment 
creditor  of  J.'s  wife  to  subject  her  interest  in  the  land  to 
the  satisfaction  of  the  judgment,  it  was  held  that  she  had 
no  separable  interest  in  the  land  which  could  be  so 
taken.1] 

§  190.  Ohio.  —  Wallace  v.  Smith,  2  Handy,  79.  De- 
vise to  A.  and  his  heirs  in  trust  for  the  benefit  of  S.,  the 
income  to  be  paid  only  on  the  order  or  receipt  of  S.,  and 
no  part  or  amount  of  the  income  to  become  due  or  pay- 
able to  S.  until  he  should  make  personal  application  or 
draw  an  order  therefor.  The  trust  to  cease  on  S.'s  death, 
and  the  property  to  go  over.  It  was  held  that  S.'s  life 
interest  was  subject  in  equity  to  his  debts.  In  Hobbs  v. 
Smith,   15  Ohio  St.  419,  a  provision  that  a  term  should 

1  These  decisions  in  Alabama  as  to  the  severableness  of  the  interests  of 
cestuis  que  trust  when  there  are  more  than  one  of  them,  should  be  com- 
pared with  the  other  decisions  on  the  same  point  cited  in  §  176,  ante. 

12 


178  RESTRAINTS  <>X    ALIENATION. 

not  be  held  liable  to  the  debts  of  the  lessee  was  held  void. 
Sec  §  278,  post.1  [In  Stanley  v.  Thornton,  7  Ohio  ( '.  C. 
155,  a  testator  directed  that  a  trustee  should  have  the 
interest  of  the  residue  for  the  use  and  benefit  of  E.  for  her 
education  and  support  during  her  life.  It  was  held  that 
E.'s  interest  could  be  reached  by  a  creditor.] 

§  190  a.  Kentucky.—  There  have  been  several  cases  in 
Kentucky.  The  main  current  of  authority  is  entirely  co- 
incident with  the  English  law  ;  but  there  is  one  case  not 
to  be  reconciled  with  it,  which  will  be  mentioned  in  its 
order. 

§  190  b.  E((,si/d,!t!  v.  Jordan,  3  Bibb,  186.  A.  con- 
veyed a  slave  to  J.  in  trust  that  the  proceeds  of  his  hire 
should  be  applied  to  the  maintenance  of  C.  during  his  life. 
Ky.  St.  Dec.  19,  179G,  §  13,  provides  that  "estates  of 
every  kind,  holden  or  possessed  in  trust,  shall  be  subject 
to  like  debts  and  charges  of  the  persons  to  whose  use  or 
for  whose  benefit  they  were  or  shall  be  respectively  holden 
or  possessed,  as  they  would  have  been  subject  to  if  those 
persons  had  owned  the  like  interest  in  the  things  holden 
or  possessed  as  they  own  or  shall  own  in  the  uses  or  trusts 
thereof."  The  effect  of  this  statute  was  to  make  estates 
which  before  were  liable  for  debts  in  equity  only  now 
liable  at  law.  It  was  held  that  the  slave  could  be  taken 
on  execution  against  C  for  at  least  (Vs  life. 

§  190  c.  Jones  v.  Langhorne,  3  Bibb,  453.  It  was  here 
decided  that  slaves  held  in  trust  could,  under  the  statute 
cited  above,  be  taken  for  the  debts  of  the  cestui  que  trust 

1  In  Wallace  v.  McMicken,  '2  Disney,  564,  there  was  a  devise  of  an 
annuity  to  A.  in  trust  for  the  use  and  benefit  of  his  vrifeand  family  daring 
hi-  life,  ami  not  to  be  subject  to  A.'s  debts.  It  was  held  that  "family" 
<li>l  not  include  A.  himself. 


RESTRAINTS   ON   ALIENATION.  179 

The  terms  of  the  trust  are  not  stated.  So  Anderson  v. 
Briscoe,  12  Bush,  344.  See  Blanchard  v.  Taylor,  7  B. 
Monr.  045. 

§  190 d.  Cosby  v.  Ferguson,  3  J.  J.  Marsh.  204.  A. 
conveyed  property  to  trustees  in  trust,  "  for  the  benefit  of 
himself  and  family,  the  interest  to  be  appropriated  to  the 
maintenance  and  use  of  his  family  and  himself  during  their 
lives."  It  was  held  that  the  deed  could  not  be  set  aside 
as  fraudulent ;  but  that  A.'s  interest  could  be  reached 
under  Ky.  St.  Dec.  17,  1821,  §  0,  which  provides  that  a 
judgment  creditor,  after  execution  returned  unsatisfied, 
may  reach  by  bill  in  equity  "  any  choses  in  action  belong- 
ing to  the  debtor,  and  also  any  equitable  or  legal  interest 
in  any  estate,  real,  personal,  or  mixed,  which  the  debtor 
may  be  entitled  to."  The  court  say :  "  His  maintenance 
(if  this  be  the  only  interest)  must  require  an  annual,  or 
perhaps  daily,  appropriation  by  the  trustee  of  a  portion  of 
the  trust  fund.  To  that  extent,  certainly,"  A.  "has  an 
interest  in  the  trust  property,  and  his  creditors  are  in 
equity  entitled  to  it." 

§  190  e.  Flournoy  v.  Johnson,  7  B.  Monr.  093.  A.  de- 
vised property  to  B.  for  the  "  special  use  and  benefit  of  C. 
and  his  family,  if  he  should  have  one."  It  does  not  appear 
whether  the  interest  was  for  life  or  absolute.  It  was  held 
that  C.'s  interest  could  be  reached  by  his  creditors  on  bill 
in  equity. 

§  190/  Pope  v.  Elliott,  8  B.  Monr.  50.  Executors 
were  directed  to  dispose  of  the  testator's  estate  "as  fol- 
lows :  .  .  .  for  the  support  of  my  son  R.  twenty-five  dol- 
lars per  month."  It  was  held  (p.  02)  that  this  interest 
of  R.  could  not  be  readied  by  a  creditor  on  bill  in  equity 
against  R.,  because  the  creditor  had  uot  recovered  judg- 


ISO  RESTRAINTS   ON    ALIENATION. 

nient  and  taken  out  execution  as  required  by  Ky.  St.  Dec. 
17,  1821,  §  <1,  cited  in  £  L90  d,  ante.  It  is  important  to 
notice  this  ease,  because  it  is  often  referred  to  (e.  g.  in 
Nichols  v.  Eaton,  91  U.  S.  710,  728,  729)  as  deciding  that 
a  fund  for  the  support  of  a  person  is  not  liable  for  his 
debts,  whereas  what  it  decided  was  that  under  the  Ken- 
tucky statute  (which  accords  in  this  point  with  the  general 
doctrines  of  equity,  see  §  17<>,  ante)  a  creditor  could  not 
maintain  a  bill  in  equity  to  reach  an  equitable  interest  of 
his  debtor  without  obtaining  a  judgment.  It  is  true  that 
the  dicta  of  the  judge  go  beyond  this,  but  those  dicta  arc 
inconsistent  both  with  the  earlier  and  later  decisions  in 
Kentucky. 

$  190^.  Samuel  v.  Salter,  3  Met.  259.  Devise  to  A. 
in  trust  out  of  the  income  to  furnish  to  B.,  from  time  to 
time,  as  he  might  need  the  same,  such  sums  as  might  be 
sufficient  for  his  reasonable  and  comfortable  support  during 
his  life;  any  surplus  of  income,  after  furnishing  such  main- 
tenance, to  be  divided  among  B.'s  children  ;  B.  to  have  no 
power  to  charge  the  maintenance,  and  support  bequeathed 
him  with  his  debts,  or  to  lay  the  fund  under  any  liability  ; 
in  furnishing  the  maintenance,  the  trustee  not  to  be  re- 
stricted or  limited  to  the  income.  A  creditor  of  B.'s  ob- 
tained judgment,  issued  an  execution  which  was  returned 
unsatisfied,  and  then  brought  a  proceeding  under  the  Civil 
Code  of  Practice,  §  A7\  (which  was  a  substantial  re-enact- 
ment of  Ky.  St.  Dec.  17,  1821,  §  0).  Held,  that  B.'s 
interest  was  subject  to  be  applied  in  payment  of  the  judg- 
ment. This  case  must  be  taken  as  overruling  any  dicta  to 
the  contrary  in  Pope  v.  Ell  toff,  §  190/,  ante. 

§  lUo'A.  Rowan  v.  Rowan,  2  Duv.  412.  Here  was  a 
devise  to  trustees  in  trust  for  A.  for  life,  remainder  to  his 


RESTRAINTS   ON   ALIENATION.  181 

children,  with  permission  to  the  trustees  to  sell  a  part  of 
the  principal  to  pay  A.'s  debts.  It  was  held  that  it  was 
discretionary  in  the  trustees  to  sell  the  property  for  A.'s 
debts  or  not ;  that  is,  it  was  in  their  discretion  whether  to 
give  the  property  to  A.'s  creditors  or  totlie  remaindermen  ; 
and  that  the  court  could  not  compel  them  to  exercise  their 
power  for  the  benefit  of  the  creditors. 

§  190  i.  White  v.  Thomas,  8  Bush,  661.  A  testator, 
having  by  will  devised  his  farm  to  A.,  made  a  codicil  by 
which  he  directed  his  executor  to  give  and  allow  Mrs. 
Ann  White,  "  during  her  life,  the  use,  benefit,  and  enjoy- 
ment of  the  dwelling  in  which  I  now  reside,  together  with 
twenty  and  three  fourths  acres  of  land.  ...  I  also  direct 
that  my  executor  shall  give  and  allow  to  Mrs.  Ann  White, 
during  her  life,  the  possession  and  use  of  all  my  house- 
hold and  kitchen  furniture.  It  is  my  intention,  and  I  so 
direct,  that  Mrs.  Ann  White  shall  enjoy  the  above  described 
property  for  her  own  separate  use,  and  it  shall  not  be  sub- 
ject to  alienation  or  sale,  either  by  her  or  for  her  debts  ; 
and  any  attempt  to  do  so,  either  by  herself  or  any  creditor 
or  creditors  of  hers,  shall  immediately  terminate  her  right 
to  use  and  enjoy  said  property  ;  and  my  executor  shall 
take  possession  of  the  same,  and  hold  and  dispose  of  it  as 
directed  in  my  foregoing  will.  But  in  the  event  that 
Mrs.  White  is  deprived  of  the  use  of  said  property,  as  is 
provided  above,  it  is  my  will,  and  I  direct  that  my  ex- 
ecutor shall  pay  over  to  her,  for  her  use,  from  month  to 
month,  during  her  life,  a  sum  equal  to  the  reasonable  rent 
of  said  dwelling-house  and  twenty  and  three  fourths  acres 
of  land.  My  executor  shall  not  anticipate  said  monthly 
payments,  but  shall  make  them  from  month  to  month  for 
the  maintenance  of  Mrs.  Ann  White  during  her  life,  and 


1  J2  RESTRAINTS   ON    ALIENATION. 

for  no  other  purpose."  A  suit  in  equity  was  brought  by 
creditors  of  Mrs.  White  to  reach  her  interest.  The  Court 
held  that  the  institution  of  the  suit  did  not  terminate  Mrs. 
White's  first  interest  under  the  will,  and  that  the  provision 
allowing  Mrs.  White  to  use  and  occupy  the  property  gave 
her  no  interest,  equitable  or  legal,  which  could  be  reached 
by  creditors.      See  £  190  /,  post. 

§  190./.  Knefler  v.  Shir  re,  78  Ky.  297.  A  testator 
gave  his  estate  to  his  children,  and  directed  that  hall'  of 
each  child's  share  should  be  conveyed  to  a  trustee,  "  to  be 
held  for  the  use  and  benefit  of  each  child  "  during  its  life, 
and  then  over,  without  any  power  in  the  child  "  to  in- 
cumber said  estate  or  anticipate  the  rents  thereof,"  the 
trustee  to  pay  the  rent  to  the  child  in  person  quarterly ; 
and  the  testator  declared  that  he  put  "  these  restrictions  " 
on  the  half-share,  not  because  he  distrusted  his  children's 
capacity,  but  because  such  half  would  "  give  them  a  com- 
fortable living  in  the  event  they  should  be  unfortunate  in 
business,  or  otherwise,"  and  because  he  wished  "to  shield 
and  protect  them  against  casualties  and  accidents  as  far  as 
possible."  On  a  child's  death,  its  share  was  given  over. 
A  son  transferred  all  his  interest  in  the  half  held  in  trust 
to  an  assignee  for  the  benefit  of  his  creditors.  Held  that 
the  assignment  was  valid.  [And  see  Woolley  v.  First  mi, 
82  Ky.  415;  Parsons  v.  Spencer,  83  Ky.  305.  Cf.  also 
Bland  v.  Bland,  90  Ky.  -loo,  §  82a,  ante;  Bull  v.  Ken- 
tucky  Bank,  90  Ky.  452.] 

§  190  k.  Davidson  v.  Kemper,  79  Ky.  5.  Devise  to 
trustees  for  the  equal  use  and  benefit  of  the  testator's  wife 
and  children,  the  trustees  to  pay  to  each  of  the  children, 
or  for  their  use  and  benefit,  "  a  sum  or  sums  suitable  and 
proper  for  the  support  of  each,  not  exceeding  "  its  share  of 


RESTRAINTS   ON   ALIENATION.  183 

the  income.  A  creditor  of  a  child  sought  to  reach  his 
interest  in  this  property.  The  Court  held  that  it  was 
"  left  discretionary  with  the  trustee  as  to  whether  the 
cestui  que  trust  should  have  the  use  or  benefit  of  any  of 
the  property  held  in  trust  ";  that  "  it  was  not  intended 
to  give  him  any  enforceable  claim  against  the  "  trustees  ; 
that  the  trustees  had  "  a  naked  permission  to  use  not 
exceeding  the  income  of  a  certain  part  of  the  estate  for 
the  support  and  maintenance "  of  the  child ;  and  that 
there  is  "  no  duty  on  their  part  to  him  which  is  enforce- 
able at  law  or  in  equity ;  and  consequently  there  are 
no  rights  to  which  creditors  can  be  substituted"  (pp.  11, 
12).  It  may  be  doubtful  how  far  the  Court  were  right 
in  holding  that  the  trust  was  not  enforceable  by  the 
beneficiary,  but,  having  reached  this  result,  they  were 
clearly  correct  in  holding  that  it  could  not  be  reached 
by  creditors.1 

§  190  /.  The  decision  in  White  v.  Thomas,  §  190  i, 
ante,  was  a  departure  from  the  received  doctrine  of  the 
invalidity  of  restraints  against  alienation,  and  is  all 
the  more  remarkable  because  Mrs.  White  would  appear 
to  have  taken  a  legal  estate  in  the  land.  No  decision 
like  it  was  at  that  time  to  be  found  in  any  of  the  State 
courts,  except  in  Pennsylvania ;  and  in  Kentucky  itself 
its  authority  is  outweighed  by  Eastland  v.  Jordan,  Cosby 
v.  Ferguson,  Fiournoy  v.  Johnson,  Samuel  v.  Salter, 
Knefler  v.  Shreve,  [Woolley  v.  Preston,  and  Parsons  v. 
Spencer,']  §§  190  6,  190  d,  190  e,  190  g,  190  j ;  [and 
therefore  it  is  submitted  that  Kentucky  is  to  be  reckoned 

1  See  Campbell  v.  Brannin,  8  B.  Monr.  478  ;  Samuel  v.  Ellis,  12  B. 
Monr.  479,  §  116,  ante ;  Luxon  v.  Wilgus,  7  Bush,  205  ;  Best  v.  Conn,  10 
Bush,  36. 


184  RESTRAINTS   ON    ALIENATION. 

among  those  States  that  hold  to  the  old  law.  See  note  to 
Barbour  «&  Carroll's  K\.  Sts.  (1894),  §  2355.] 

ij  191.  We  now  come  to  the  States  where  there  is  no 
decision  directly  involving  the  invalidity  of  legal  restraints 
on  the  alienation  of  equitable  life  estates,  but  where  the 
courts  have  declared  that  such  restraints  are  invalid. — 
New  Jersey.  In  tins  State  the  matter  is  regulated  by 
legislation.  A  statute,  copied  From  the  New  York  Re- 
vised Statutes  (see  §  281,  post),  provides  that  a  judgment 
creditor  may  tile  a  bill  in  equity  to  have  the  judgment 
satisfied  out  of  any  property  held  in  trust  for  the  defend- 
ant, "  except  when  such  trust  has  been  created  by,  or  the 
fund  so  held  in  trust  has  proceeded  from,  some  person 
other  than  the  defendant  himself."  X.  J.  Sts.  (Rev.  of 
1877),  p.  120,  §  88.  This  has  been  construed  to  mean 
that,  when  a  trust  has  been  created  by,  or  a  fund  held  in 
trust  has  proceeded  from,  some  person  other  than  the 
cestui  que  trust,  a  judgment  creditor  of  the  latter  cannot 
reach  it.  Johnson  v.  Woodruff,  4  Hals.  Ch.  120,  729. 
Frazier  v.  Barnum,  4  C.  E.  Green,  31G.  Force  v.  Brown, 
32  X.  J.  Eq.  118.  Hardenburgh  v.  Blair,  30  N.  J.  Eq. 
til."),  reversing  s.  c.  Id.  42.  [Lippineott  v.  Evens,  35 
X.  J.  Eq.  553.  This  has  nothing  to  do  with  clauses 
restraining  alienation,  for  the  statute  applies  to  all  trusts 
and  funds  not  proceeding  from  the  cestui  que  trust, 
whether  they  arc  provided  with  such  clauses  or  not.] 

§  192.  The  general  principle,  then,  apart  from  statute, 
would  not  have  come  up  for  discussion  in  this  State, 
except  that  in  Hardenburgh  v.  Blair,  39  X.  J.  Eq.  42, 
the  Chancellor  thought  that  the  statute  did  not  apply, 
and  therefore  had  to  consider  the  general  rule  of  equity. 
Property  was  there  given  by  will  to  executors  in  trust  to' 


RESTRAINTS   ON   ALIENATION.  185 

pay  to  A.  the  income  during  his  life  "in  such  manner  and 
in  such  amounts  as  the  executors  should  deem  most  pru- 
dent." The  Chancellor,  after  discussing  the  authorities, 
held  that  A.'s  interest  could  be  reached  by  his  judgment 
creditors.  The  Court  of  Appeal  held  that  the  statute  did 
apply,  and  therefore  had  no  occasion  to  pass  upon  the 
general  question  ;  but  the  opinion  of  the  Chancellor  shows 
that,  apart  from  statute,  the  law  in  New  Jersey  is  the 
same  as  in  England.1  See  Wells  v.  Ely,  3  Stockt.  172 ; 
and  compare  Bolles  v.  State  Trust  Co.,  12  C.  E.  Green, 
308,  stated  §  1/2,  ante. 

§  192  a.  [A  New  Jersey  statute  (Pub.  L.  1880,  p.  2/4, 
Suppl.  to  Rev.  Sts.  p.  292)  now  directs  that  the  provis- 
ions of  the  St.  of  1850  (Rev.  Sts.  p.  393,  §  23)  on  discov- 
ery in  aid  of  execution  "  shall  apply  to  the  income  of  all 
property  or  money  or  things  in  action  held  in  trust  for  the 
debtor,  where  the  trust  has  been  created  by,  or  the  fund 
held  in  trust  has  proceeded  from,  some  other  person  than 
the  debtor  himself;  provided,  the  income  of  such  trust 
property  shall  exceed  four  thousand  dollars."  If  the  in- 
come exceed  $4,000,  it  is  not  clear  whether  the  whole 
income  or  only  the  excess  over  84,000  can  be  taken.  At 
any  rate,  whatever  is  not  exempted  by  this  statute  comes 
under  the  general  doctrine  of  equity,  and  what  that  is  held 
to  be  in  New  Jersey  appears  in  the  preceding  section. 
The  statute  is  interesting  as  being  the  first  attempt  to 
limit  the  protection  of  a  spendthrift  trust  to  a  defined 
amount,  though  the  limit  seems  absurdly  high.  Halstead 
v.  ^Yestervelt,  41  N.  J.  Eq.  100.  Hunterdon  Freeholders 
v.  Henry,  Id.  388.] 

1  Attached  to  the  report  of  the  Chancellor's  decision  is  a  long  and  useful 
note  by  the  learned  reporter. 


186  RESTRAINTS   <>N    ALIENATION. 

§194.  Arkansas. —  [n  Lindsay  v.  Harrison,  8  Ark. 
302,  the  point  decided  in  which  is  stated  supra,  §  1/1, 
note,  the  court  say  (p.  311):  "It  is  impossible  to  tie  up 
the  use  and  enjoyment  of  a  personal  chattel  so  as  to  create 
in  the  donee  an  unlimited  estate  which  he  may  not  alien. 
Even  a  life  estate  cannot  be  so  limited  and  restricted. 
Woodmeston  v.  Walker,  2  11.  &  Myl.  197-  Massey  v. 
Parker,  Id.  174.  Brown  v.  Pocock,  Jd.  218.  Brandon 
v.  Robinson,  18  Yes.  429.  Such  fetters  may  be  imposed 
upon  the  estates  of  married  females,  or  estates  settled 
upon  females  in  contemplation  of  marriage  during  cov- 
erture, but  they  cease  upon  the  determination  of  the 
coverture." 

§  19 1  a.  Wisconsin.  —  In  this  State  the  language  of  the 
cases  leaves  the  law  in  doubt.  In  Bridge  v.  Ward,  .'!">  Wis. 
687,  690,  as  to  which  see  §§  24,  134,  ante,  the  Court  cite 
with  approval  the  language  of  2  Redfield  on  Wills,  (>(>8,  — 
that  property  cannot  be  given  either  for  life  or  absolutely 
without  the  power  of  alienation  being  incident  to  the  gift. 
See  McCleary  v.  Ellis,  54  Iowa,  311.  [In  Lambertonv. 
Pereles,  87  Wis.  449,  it  was  held  that  an  equitable  life 
interest  in  personalty,  where  there  was  no  clause  against 
anticipation,  could  be  assigned,  the  Wisconsin  Rev.  Sts. 
(1878),  §  2089,  applying  only  to  real  estate.  The  Court 
cite  several  authorities  pro  and  con  on  the  validity  of 
restraints  on  alienation,  but  do  not  disclose  their  own 
opinion.  Trust  estates  in  land  in  Wisconsin  are  now  gov- 
erned by  statute.     See  §  296,  ^;o.s/.] 

§  194  b.  [In  Sumner  v.  Newton,  64  Wis.  210,  a  testatrix 
gave  property  to  a  trustee,  in  trust  to  apply  the  income  for 
the  support  of  M.  for  life,  and  on  her  death  to  transfer  the 
principal  to  S.  and  H.     S.  and  II.  petitioned  that  the  trust 


RESTRAINTS  ON    ALIENATION.  187 

property  might  be  transferred  to  them,  and  produced  a 
paper  purporting  to  be  signed  by  M.  releasing  the  estate 
of  the  testatrix  and  the  trustee  from  every  claim  on 
account  of  anything  in  the  will  of  the  testatrix.  The 
trustee  opposed  the  granting  of  the  petition,  and  the 
court  refused  to  grant  it.  (1.)  Because  M.  was  not  a 
party  to  the  proceedings.  (2.)  Because  there  was  "  a 
failure  to  investigate  the  circumstances  under  which  the 
release  was  executed,  the  capacity  of"  M.,  "  and  whether 
or  not  the  execution  of  this  release  was  a  judicious  and 
discreet  act  on  her  part."  (3.)  Because  there  was  a 
failure  to  require  security  for  the  protection  of  M.,  should 
she  hereafter  become  indigent.  Whether,  with  the  con- 
sent of  the  trustee,  any  of  these  requisites  could  be  dis- 
pensed with,  and  whether,  on  a  proper  case  made,  the 
Court  could  terminate  the  trust  without  the  trustee's 
consent,  are  questions  stated  in  the  opinion,  but  not 
passed  upon.  It  may  well  be  that  no  court  would  sustain 
a  release  of  a  cestui  que  trust  to  the  trustee  before. the 
natural  termination  of  the  trust  without  clear  affirmative 
evidence  of  the  good  faith  and  equity  of  the  transaction, 
but  it  is  hard  to  see  on  what  ground  security  could  be 
demanded.  The  case  certainly  raises  grave  doubts  whether 
the  Wisconsin  Court  will  not  sustain  spendthrift  trusts.] 

§  195.  Connecticut.  —  In  this  State  there  are  no  de- 
cisions. The  dicta  arc  conflicting.  In  Donalds  v.  Plumb, 
8  Conn.  447,  a  testator  devised  all  his  estate,  real  and 
personal,  to  his  grandchildren,  on  the  death  of  his  daughter 
A.,  the  wife  of  K.,  and  added  :  "  But  the  use  and  improve- 
ment of  my  estate  I  will  shall  be  for  the  support  of  my 
daughter  A.  and  her  children  during  her  life ;  and  for  that 
purpose  I  constitute  "  D.  and  said  A.  trustees  "  to  earn 


188  RESTRAINTS  ON   ALIENATION. 

the  same  into  effect."  Held  that  one  who  had  supplied 
necessaries  to  A.  and  her  children  on  the  credit  of  this 
trust  fund  could  maintain  a  bill  in  equity  to  be  paid  out 
of  it.     [Sec  Williams  v.  Robinson,  10  Conn.  517,  5:2:5.] 

§  196.  Leavitt  v.  Beirne,  21  Conn.  1.  Property  was 
devised  to  a  married  woman,  M.,  for  the  exclusive  use  of 
herself  and  her  children,  free  from  the  debts  and  control 
of  her  husband  ;  and  to  secure  the  same  to  their  unim- 
paired enjoyment,  he  gave  the  property  in  trust,  with  full 
authority  to  apply  the  property  as  to  the  trustee  should 
seem  best  for  their  exclusive  benefit  during  the  life  of  M. ; 
and  on  her  death  to  divide  the  same  among  her  children. 
It  was  held  (by  three  judges  to  two)  that  the  principal  of 
the  trust  fund  was  not  liable  for  debts  contracted  by  M. 
This  case  is  important  here  only  for  a  dictum  of  Waite,  J. 
He  says  (pp.  8,  9) :  "A  man  may  have  a  son  so  fallen  into 
vicious  habits  as  to  be  utterly  unfit  for  the  management  of 
any  property.  A  gift  to  him  might  be  worse  than  useless. 
That  son  may  have  a  wife  and  children  whom  he  entirely 
neglects.  The  father  [may]  be  both  able  and  willing  to 
make  ample  provision  for  them,  and  save  them  from  being 
a  public  burden.  But  he  can  do  nothing  through  the 
instrumentality  of  his  son.  But  may  he  not,  through  the 
intervention  of  trustees  in  whom  he  can  confide,  and 
place  property  in  their  hands  for  the  benefit  of  his  son 
and  family  beyond  his  control  ? "  [See  Tarrant  v. 
Backus,   63   Conn.    277,   287.] 

§  197.  Farmers  Savings  Bank  v.  Brewer,  27  Conn. 
600.  Property  was  devised  to  trustees  in  trust  to  pay 
the  income  to  W.  semiannually  for  life,  with  a  gift  over 
on  his  death.  Held  that  W.'s  equitable  life  interest  was 
assignable.      The  Court  say  (pp.  606,  607) :    "  We  have 


RESTRAINTS   ON   ALIENATION'.  189 

no  occasion  to  consider  the  question  that  lias  been  made 
before  us,  as  to  the  effect  of  a  provision  against  alienation." 
§  1 !){',.  Easterly  v.  Keney,  36  Conn.  If!.  Devise  to  a 
trustee  in  trust  "to  pay  to  A.,  and  tins  devise  i>  for  the 
purpose  of  securing  to  said  A.  the  rents,  use,  and  benefits 
ot'saiil  devise,  exclusive  to  all  other  persons.  Said  trustee 
is  hereby  directed  to  pay  to  said  A.,  or  to  his  written  order, 
made  annually,  the  rents,  profits,  and  issues  of  said  build- 
ing hereby  devised  ;  and  this  devise  is  not  to  enure,  in  any 
manner,  lor  the  use  and  benefit  of  any  creditors  of  said  A., 
but  is  hereby  intended  to  be  for  the  only  use  and  benefit 
of  said  A.,  and  for  such  use  and  purpose  only  as  he  shall 
annually  appoint."  The  Court  said  :  "  If  an  equitable  or 
legal  interest  in  land  is  devised,  and  it  becomes  vested  in 
the  devisee,  it  is  subject  to  all  the  incidents  of  ownership 
in  his  hands,  and  may  be  taken  by  creditors,  as  freely  as 
any  other  property  of  the  debtor,  although  the  testator 
may  have  strongly  expressed  his  intent  to  the  contrary." 
"  The  clause  in  the  devise,  that  the  rents  and  profits  shall 
in  no  case  enure  to  the  benefit  of  the  creditors  of  Goodwin, 
can  have  no  effect.  If  the  income  was  his,  it  was  his  for 
all  purposes,  like  any  other  property.  The  testatrix  should 
have  conferred  upon  the  trustee  discretionary  power  of 
appropriation,  if  she  desired  to  deprive  the  cestui  que  trust 
of  ownership  of  the  rents  and  profits  before  they  should  be 
paid  to  him."  (pp.  19,  22.)  It  was  held  that  rents  and 
profits  in  the  hands  of  the  trustee  could  be  reached  by 
foreign  attachment ;  but  that  there  was  no  law  or  practice 
that  would  enable  a  creditor,  by  the  aid  of  a  petition,  to 
seize  rents  and  profits  that  might  hereafter  accrue  or  come 
into  the  hands  of  the  trustee.1 

1  [The  court  held  that  A.  had  an  equitable  life  estate,  but  did  he  not 
really  take  an  equitable  fee  ?] 


190  RESTRAINTS  ON  ALIENATION. 

£  1!>!>.  This  opinion  shows:  (1.)  That  a  creditor  can- 
not, in  ( !onnecticut,  reach  an  equitable  interest  in  rents  and 
profits  not  yet  accrued  ;  but  this  has  nothing  to  do  with 
any  restraint  imposed  upon  the  alienation  of  such  interest; 
if  no  restraint  had  been  imposed,  the  result  would  have 
been  the  same.  The  rents  and  profits  yet  to  accrue  can- 
not be  reached,  because  they  are  an  equitable  future 
interest,  not  because  they  are  an  inalienable  interest 
(see  §  17<»,  ante).  (2.)  That  an  assignee,  either  voluntary 
or  in  bankruptcy,  would  take  the  entire  interest  of  the 
cestui  que  trust  in  the  rents  and  profits,  "like  any  other 
property,"  despite  any  intended  restraints.  There  is  no 
judgment  on  this  last  point,  it  is  true,  for  the  case  did  not 
arise ;  but  the  opinion  leaves  no  doubt  as  to  the  views  of 
the  court,  and  makes  it  clear  that  the  diction  cited  above 
from  Leavitt  v.  Beirne,  §  196,  ante,  is  not  now  law  in 
Connecticut,  if  indeed  that  diction  means  anything  more 
than  that,  by  giving  a  trustee  discretionary  power  to  whom 
to  pay  a  trust  fund,  it  may  be  protected  against  the  debts 
of  any  particular  cestui  que  trust. 

§  199  a.  [Clement's  Appeal,  49  Conn.  519.  A  testator 
gave  a  share  of  the  residue  of  his  estate  to  A.,  in  trust  to 
pay  over  the  use,  income,  and  rents  thereof,  from  time  to 
time,  at  his  discretion,  to  B.,  for  and  during  the  period  of 
his  natural  life,  for  the  comfort  and  support  of  himself  and 
family,  and  at  the  decease  of  B.  to  pay  and  deliver  over 
the  same  in  equal  portions  to  his  children.  B.  became 
insolvent,  and  made  a  compromise  with  his  creditors.  A. 
was  one  of  these  creditors,  and  received  his  dividend  and 
also  a  note  from  B.  for  the  balance  of  his  debt.  The  Court 
found  that  this  note  was  void  as  given  in  fraud  of  the  other 
creditors.     A.  paid  himself  the  amount  of  the  note  out  of 


RESTRAINTS  ON    A I . I K NATION.  101 

tlie  income  of  the  fund,  and  charged  it  to  1>.,  who  assented 
to  the  charge,  and  never  complained  of  it  afterwards.  On 
the  settlement  of  A.'s  account,  after  the  death  of  13.,  the 
Court  disallowed  this  payment,  on  the  grounds,  first,  that 
B.'s  children  were  entitled  to  all  the  income  not  actually 
paid  to  l>.  lor  the  comfort  and  support  of  himself  and  his 
family  (which  seems  a  questionable  construction)  ;  and, 
secondly,  that  a  trustee,  having  a  discretion  to  pay  in- 
come to  his  cestui  que  trust  from  time  to  time,  cannot, 
even  with  the  cestui  que  trust's  assent,  pay  himself  an 
invalid  claim  of  his  own  against  the  latter  out  of  the 
income  of  the  trust  fund.] 

§  19(J  b.  [Tolland  County  Ins.  Co.  v.  Underwood,  50 
Conn.  49.'}.  The  will  of  a  testator  was  to  the  effect  that 
he  gave  to  his  wife  all  the  income  of  his  estate,  and  so 
much  of  the  principal  as  might  be  necessary  for  her  sup- 
port and  maintenance,  and  the  support,  maintenance,  and 
education  of  his  daughters  during  her  life.  The  plaintiff 
recovered  a  judgment  against  the  wife  for  $418.83,  and 
filed  a  lien  to  secure  the  same  upon  the  land  devised  by  the 
will.  There  were  two  single  and  one  married  daughter 
living.  The  personal  estate  had  been  exhausted,  and  the 
real  estate  remaining  was  worth  about  $3,400.  On  a  suit 
to  enforce  the  lien,  the  Court  held  that  the  wife  took  a  life 
estate  in  trust,  and  that  her  interest  was  not  separable 
from  that  of  the  daughters,  and  could  not  be  reached  by 
the  plaintiff.  The  dicta  of  Carpenter,  J.,  go  much 
further.  He  says,  speaking  of  exceptions  to  the  rule, 
that  all  a  man's  property  is  liable  for  his  debts:  "All 
property  exempt  by  statute  from  attachment  is  within 
the  exception  ;  so  is  ordinary  trust  property  designed  to 
secure  a  maintenance   for  some  unfortunate   debtor;   so 


192  RESTRAINTS   OX  ALIENATION. 

also  the  income  of  trust  property,  where  it  is  payable 
to  the  beneficiary  at  the  discretion  of  the  trustee."  And 
again  :  "  While  a  court  of  equity  will  lend  its  aid  to 
appropriate  the  surplus  of  trust  funds,  after  affording  a 
reasonable  Bupport  to  the  cestui  que  trust,  to  the  payment 
of  his  debts,  yet  we  apprehend  that  it  will  not  interfere  to 
deprive  a  widow  of  a  pittance,  confessedly  too  small  for 
her  support,  left  by  her  husband  for  that  purpose.  In 
Genet  v.  Beeknian,  45  Barb.  382,  the  marginal  note  is: 
'  It  is  only  in  cases  where  a  clear  surplus  will  exist,  after  a 
reasonable  sum  has  been  appropriated  to  the  support  of 
the  person  for  whose  benefit  a  trust  was  created,  that 
courts  of  equity  are  authorized  to  interfere  in  behalf  of 
judgment  creditors,  and  divert  a  portion  of  the  income  or 
annuity  to  the  payment  of  the  debts  of  such  person.'  " 
In  Genet  v.  Beekman,  the  Court  was  expounding  a  Xew 
York  statute  (Rev.  Sts.  part  2,  c.  1,  tit.  2,  art.  2,  §  57) 
which  expressly  provides  for  creditors  reaching  the  surplus 
of  a  fund  held  in  trust  for  a  debtor  beyond  what  may  be 
necessary  for  his  education  and  support ;  but,  apart  from 
statute,  it  would  not  seem  that  either  in  those  jurisdictions 
where  spendthrift  trusts  are  sustained  or  where  they  are 
condemned  can  a  court  of  equity  set  aside  out  of  a  trust 
fund  what  is  necessary  for  the  support  of  a  cestui  que  trust, 
and  hand  over  the  rest  to  his  creditors.  See  Tarrant  v. 
Backus,  63  Conn.  277,  284.  Cf.,  however,  Leigh  v.  Har- 
rison, (>9  Miss.  923,  §  240  m,  post;  Nickell  v.  Ha  tally, 
10  Grat.  336,  §  245,  post.]  x 

§  213.   Thus   far   we   have   seen  that   in  eight  States 

1  [§§  200-211  in  the  first  edition  contained  a  statement  of  the  law  in 
Kentucky,  which  is  now  to  be  found  §§  190«-190  I,  ante;  and  §  212  gave 
the  law  as  it  then  stood  in  Vermont ;  sec  §  240  n,  post.] 


RESTRAINTS  OX    ALIENATION.  193 

(Rhode  Island,  New  York,  North  Carolina,  South  Caro- 
lina, Georgia,  Alabama,  Ohio,  [and  Kentucky])  there  are 
decisions  against  the  validity  of  restraints  on  the  aliena- 
tion of  equitable  life  estates  (§§  1/9-190  I,  ante)  :  that  in 
two  States  (New  Jersey  and  Arkansas)  there  are  dicta  to 
the  same  effect  (§§  191-194,  ante)  ;  and  that  in  Wiscon- 
sin and  Connecticut  the  dicta  are  conflicting  (§§  19  1  a- 
199  b,  ante).  [The  only  States,  at  the  date  of  the  former 
edition,  in  which  restrictions  upon  the  alienation  of  equi- 
table life  estates  had  been  held  valid  were  Pennsylvania 
and  Massachusetts.] 

§214.  Pennsylvania.  —  The  law  in  Pennsylvania  on 
this  subject  at  the  time  of  its  adoption  was  opposed  to 
that  held  in  every  other  country  within  the  domain  of 
common  law  and  equity.  In  that  State,  property  given 
to  trustees  for  the  support  of  a  man  or  unmarried  woman 
is  not  liable  for  his  or  her  debts.  This  peculiar  doctrine 
is  the  not  unnatural  result  of  local  causes.  Its  history  is 
as  follows.  In  Pennsylvania  there  were  formerly  no  courts 
of  equity.  If  a  man  had  equitable  rights,  he  had  no  remedy 
to  enforce  them.  The  natural  consequence  of  this  was  that 
many  rights,  which  in  countries  where  courts  of  equity 
were  established  would  be  deemed  equitable  only,  were  in 
Pennsylvania,  for  the  sake  of  giving  a  remedy,  regarded  as 
legal. 

§  215.  Equitable  rights  in  property  were  turned  in 
Pennsylvania  into  legal  rights,  in  two  ways  : — First.  By 
emphasizing  the  distinction  between  active  and  passive 
trusts,  and  by  giving  the  legal  estate,  whenever  the  trust 
was  passive,  to  the  cestui  que  trust.  This  doctrine  went 
far  beyond  the  Statute  of  Uses,  for  (1.)  whenever  a  use 
was  limited   upon  a  use,   although  in  England   the   lat- 

13 


194  RESTRAINTS  ON   ALIENATION. 

ter  use  is  not  executed,  in  Pennsylvania  it  was;  and 
(2.)  although  the  Statute  of  Uses  does  not  apply  to  per- 
sonal property,  yet  in  Pennsylvania  personal  property  held 
by  A.  on  a  passive  trust  for  B.  became  the  legal  property 
of  B.] 

§  216.  Second///.  By  considering  as  passive  trusts  many 
which  are  elsewhere  held  active  ;  for  instance,  upon  a  trust 
to  receive  and  pay  over  to  X.,  X.  would  be  held  in  Penn- 
sylvania to  have  a  legal  interest.  See  Rife  v.  Geyer,  59 
Pa.  393,  396.  So  upon  a  trust  to  convey.  Nice's  Appeal, 
50  Pa.  143.  Bacon's  Appeal,  57  Pa.  504.  [Harkinson 
v.  Huron.  ;\  W.  N.  C.  (Pa.)  4<>:}.  Armstrong's  Estate, 
9  W.  X.  C.  (Pa.)  289.]     Bispham,  Eq.  §  55. 

§  -JIG  a.  [Further,  not  only  were  rights  regarded  else- 
where as  equitable  held  in  Pennsylvania  to  be  legal,  but 
legal  remedies  and  process  were  extended  in  that  State  to 
interests  to  which  they  were  elsewhere  deemed  inappli- 
cable,- and,  notably,  equitable  interests  could  be  taken  in 
Pennsylvania  on  execution.  The  cases  in  which  this  was 
originally  done  seem  by  the  reports  to  have  been  instances 
of  the  sale  of  real  estate  in  which  the  vendee  had  not 
taken  a  deed,  but  the  language  of  the  books  has  always 

1  In  apparent  conflict  with  this  are  the  cases,  so  frequent  in  Pennsyl- 
vania since  the  introduction  of  equity,  brought  by  ccstuisguc  trust  against 
their  trustees  for  a  conveyance  ;  but  the  Court  lias  said  that  conveyances 
have  been  ordered  in  these  cases,  not  because  the  cestuis  </<"  trust  have 
not  had  tin-  Legal  interest,  but  in  order  to  give,  them  marketable  titles. 
Kay  v.  Scates.  37  Pa.  31,  40.  Bacon's  Appeal,  57  Pa.  504,  513.  Rife  v. 
Geyer,  59  Pa.  •;'.':;,  •">%.  Westcottv.  Edmunds,  68  Ta.  34,  37.  See  Kuhn 
v.  X,  wman,  26  Pa.  227,  233. 

2  [So  ejectment  was  and  is  the  remedy  to  enforce  specific  performance 
of  a  contract  to  convey  land.  See  Peebles  v.  Reading,  8  S.  &  R.  484  ; 
Henderson  v.  Hays,  '2  Watts,  148  ;  Prcshytcrian  Congregation  v.  Johnston, 
1  W.  &.  S.  9,  56  ;  Christy  v.  L'rkn,  14  Pa.  248.  Cf.  Kennedy  v.  Fury, 
1  Dull.  72.] 


RESTRAINTS   ON   ALIENATION.  195 

been  that  all  equitable  interests  in  hind  ean  be  taken  on 
execution ;  the  doctrine  is,  however,  confined  to  land. 
Carkhuff  v.  Anderson,  3  Binn.  4,  8,  9.  Auwerter  v. 
Mathiot,  9  S.  &  R.  397-  Richert  v.  Madeira,  1  Rawle. 
325,  329.  Pullen  v.  Rianhard,  1  Whart.  514,  522.  Thomas 
v.  Simp>son,  3  Pa.  St.  60,  09.  Russell's  Appeal,  15  Pa. 
319.  Webb  v.  Dean,  21  Pa.  29.  Drake  v.  Brown,  03 
Pa.   223. 

§  217-  [When,  therefore,  spendthrift  trusts  made  their 
appearance  in  Pennsylvania,  the  interests  of  the  cestuis  que 
trust  could  not  be  reached  in  equity,  because  there  was  no 
court  of  chancery,  and  the  only  way  they  could  be  reached 
was  by  taking  them  on  execution  at  law.  Now  it  had 
been  a  great  stretch  to  allow  executions  to  operate  against 
equitable  interests  of  any  kind,  and  the  courts  may  well 
have  relucted  at  extending  executions  to  the  case  of  the 
complicated  interests  and  rights  of  a  cestui  que  trust  under 
a  spendthrift  trust.]  Afterwards  the  courts  of  Pennsyl- 
vania gradually  acquired  equity  jurisdiction,  and  the 
natural  result  was  that  they  began  to  look  at  trusts  as 
they  were  regarded  elsewhere  ;  but  the  hold  of  spendthrift 
trusts  was  too  strong  to  be  shaken  off,  though  there  are 
not  wanting  signs  of  regret  on  the  part  of  Pennsylvania 
judges  that  they  were  ever  established.     See  §  234,  post. 

§  218.  What  is  above  stated  seems  the  most  probable 
account  of  the  origin  of  spendthrift  trusts  in  Pennsyl- 
vania ;  but  the  law  of  trusts  in  that  State  is  confused  in 
the  extreme,  and  the  fluctuation  of  judicial  opinion  has 
been  great.  A  few  of  the  cases  illustrating  it  are  Kuhn 
v.  Newman,  20  Pa.  227;  Kay  v.  Scales,  37  Pa.  31; 
Barnetfs  Appeal,  40  Pa.  392 ;  Bacons  Appeal,  57  Pa. 
504 ;  Rife  v.  Geyer,  59  Pa.  393 ;  Dodson  v.  Ball,  00  Pa. 


196  RESTRAINTS   ON   ALIENATION. 

492;  Ogderis  Appeal,  70  Pa.  501  :  Earps  Appeal,  7~>  Pa. 
11!) ;  Hubers  Appeal,  80  Pa.  3  18  ;  Williamss  Appeals,  83 
Pa.  377;  Hartley's  Estate,  13  Phil.  392.  For  a  collection 
of  the  authorities  sec  Bispham,  Eq.  (5th  ed.)  §  .">•">. 

$  219.  The  establishment  of  spendthrift  trusts  in  Penn- 
sylvania appears  to  have  been  largely  due  to  the  influence  of 
Chief  ustice  Gibson.  The  interference  of  equity  to  com- 
pel people  to  pay  their  debts  seems  to  have  moved  the 
wrath  of  that  sturdy  common  lawyer.  "Nothing  in  the 
law,"  he  says,  "  is  more  to  be  deprecated  than  those 
decisions  in  which  the  right  of  a  cestui  que  trust  to  dis- 
pose of  his  estate  has  been  recognized."  Lancaster  v. 
Dolan,  1  Rawle,  231,  247;  and  see  Holdshipv.  Patter- 
son, 7  Watts,  ~j47,  551.  It  is  to  him  that  Pennsylvania 
owes  the  doctrines,  (opposed  to  the  great  weight  of 
authority  elsewhere.)  that  a  married  woman  can  charge 
her  separate  estate  only  so  far  as  she  is  authorized  by  the 
instrument  creating  it ;  Lancaster  v.  Dotm/,  ubi  supra  ; 
[see  §  275  1>,  -post  ;]  and  that  property  appointed  under  a 
general  power  to  a  volunteer  is  not  assets  for  the  payment 
of  the  appointor's  debts.  Commonwealth  v.  Duffield,  12 
Pa.  277.  [King's  Estate,  1G  Phil.  308  ;  14  W.  N.  C.  77 ; 
s.  o.  sub  nom.  Swaby's  Appeal,  14  W.  N.  C.  553.] 

§  220.  The  series  of  cases  is  as  follows.  Fisher  v. 
Tiii/tor,  2  Rawle,  33  (1829).  Devise  to  executors  "in 
trust  for  my  son  S.,  the  said  S.  to  have  the  rents,  issues, 
and  profits  thereof,  but  the  same  not  to  be  liable  to  any 
debts  contracted,  or  which  may  be  contracted,  by  the  said 
S."  It  was  held  that  this  trust  was  active  ;  that  the  legal 
estate  was  in  the  executors  ;  and  that  S.  had  no  interest 
which  could  be  taken  on  execution  at  law. 

§  221.   Holdship  v.   Patterson,  7  Watts,   547  (1838). 


RESTRAINTS   ON  ALIENATION.  197 

Personal  property  was  given  by  A.'s  friends  to  A.'s 
daughter  to  carry  on'  business  for  the  support  of  her 
fathers  family,  and  she  agreed  to  give  A.  a  reasonable 
support.  Held  that  the  property  could  not  be  taken  on 
execution  for  A.'s  debts. 

§  222.  Hamersley  v.  Smith,  4  Whart.  126  (1838).  A 
testator  directed  that  money  should  be  invested  by  his 
executors  in  trust  for  the  sole  use  of  A.  A.  was  married 
at  the  testator's  death,  her  husband  died,  and  she  married 
again.  Held  that  she  and  her  husband  could  assign  the 
fund,  there  being  no  restraint  on  anticipation. 

§  223.  Ashhurst  v.  Given,  5  W.  &  S.  323  (1813). 
Property  was  devised  to  A.,  with  full  powers  of  manage- 
ment, in  trust  for  such  children  as  A.  might  have  at  his 
death,  and,  if  he  should  die  without  issue,  for  the  testator's 
heirs,  and  the  testator  directed  that  A.,  for  his  services  in 
managing  the  trust  property,  might  be  allowed  a  reason- 
able support  out  of  the  trust  fund.  It  was  held  that  the 
trust  property  could  not  be  taken  on  execution  for  the 
debts  of  the  trustee. 

§  224.  Vaux  v.  Parke,  7  W.  &  S.  19  (1844).  Land 
was  devised  to  trustees  in  trust  to  pay  the  income  to  A.  or 
his  appointee  during  the  life  of  A.,  and  on  A.'s  death  to 
his  appointee,  with  powTer  in  the  trustees,  if  A.  should  be 
so  relieved  from  embarrassment  as  to  make  it  expedient, 
to  convey  to  him  in  fee.  It  was  held  that  A.  had  no  legal 
estate  that  could  be  taken  on  execution  at  law.  The  Court 
add :  "  We  give  no  opinion  how  far  such  a  right  as  he  had 
could  be  reached  by  his  assignees,  or  by  other  proceedings 
on  behalf  of  creditors." 

§  225.  Norris  v.  Johnston,  5  Pa.  28/  (1847).  Land 
was  devised  to  trustees  in  trust  to  pay  the  income  to  A. 


198  RESTRAINTS   <>X    ALIENATION. 

for  life.  The  testator  added:  "This  share  of  my  estate, 
excepting  the  interest  thereof,  shall  not  be  subject"  to 
A.'s  contracts  or  debts.  Held  that  A.  eould  assign  his 
life  interest. 

§  225  a.  [King's  Estate,  9  Leg.  Int.  140  (1852).  This 
case  in  the  Orphans'  Court  is  so  imperfectly  reported  that 
it  is  impossible  to  determine  the  puint  decided.  It  seems 
to  have  been  held  that  the  interest  of  a  cestui  que  trust 
in  a  trust  fund  was  not  liable  for  his  debts,  because  of  dis- 
cretionary powers  in  the  trustees ;  but  what  those  powers 
were  does  not  appear.] 

^  226.  Brown  v.  Williamson,  30  Pa.  338  (1860), 
presents  precisely  the  same  questijn  as  Ashhurst  v. 
(lii-iii,  £  223,  ante;  and  to  the  same  effect  is  Boyd's 
A/>jiru/}  -2  W.  X.  C.  204.  Bees  v.  Livingston,  41  Pa. 
113  (1861),  is  the  exact  ease  decided  in  Holdship  v.  Pat- 
terson, §  221,  ante.  In  Mackasons  Appeal,  42  Pa.  330 
(1862),  it  was  held  that  a  man  cannot  settle  his  own 
property  on  himself  so  that  his  creditors  will  be  unable 
to  reach  it.  [This  was  followed  in  Andress  v.  Lewis,  17 
W.  X.  C.  2/0,  and  Lewis  v.  Miller,  21  W.  N.  C.  94,  and 
in  Ghormley  v.  Smith,  139  Pa.  584,  on  deliberate  con- 
sideration, was  confirmed.  See  also  Stewart  v.  Madden, 
153  Pa.  445.]  See  Mead  v.  Penn  Co.,  5  Leg.  &  Ins.  Rep. 
107,  cited  2  Brightly's  Pa.  Dig.  (1877),  p.  2324.  In  Still 
v.  Spear,  45  Pa.  168  (1863),  [and  Osborne  v.  Soley,  2 
W.  X.  C.  5.'53,]  it  was  held  that  the  principal  of  a  trust 
fund  cannot  be  taken  by  garnishee  process  for  the  debt  of 
one  having  only  a  life  interest ;  [see  also  Mannerback's 
Estate,  133  Pa.  342 ;]  and  Bametfs  Appeal,  46  Pa.  392 
(1864),  cites  several  dicta  in  favor  of  spendthrift  trusts, 
but  the  decision  does  not  touch  the  matter. 


RESTRAINTS  OX  ALIENATION.  199 

§  227.  Girard  Ins.  Co.  v.  Chambers,  46  Pa.  485  (1864). 
Property  was  held  by  A.  in  trust  to  pay  the  income  to  B. 
for  his  life,  for  his  own  use  and  benefit,  or  to  such  person 
as  he  might  authorize.  A.  was  summoned  on  attachment 
execution  as  garnishee  of  B.,  and  the  Court  held  that  the 
income  of  the  trust  fund  accrued  in  the  hands  of  A.  at 
the  date  of  the  attachment  could  be  taken  under  it.  A 
statement  in  the  opinion,  that  the  Court  would  give  "  the 
income  during  the  life  of  the  son  to  the  attaching  cred- 
itor "  (p.  492),  is  calculated  to  give  the  impression  that  the 
creditor  was  entitled  to  income  not  yet  accrued.  But 
this  would  be  a  mistake.  There  is  no  machinery  in  a 
foreign  attachment  or  attachment  execution  for  reaching 
income  not  yet  accrued  ;J  and  the  order  at  the  close  of  the 
case  shows  (see  p.  488)  that  only  the  accrued  income  was 
taken  by  the  attaching  creditor.  This  income  accrued  was 
a  legal  debt  from  the  trustee  to  B.,  and,  like  any  other  legal 
debt,  could  be  reached  by  garnishment.  [See  also  Park 
v.  Matthews,  36  Pa.  28 ;  Kinney  v.  Hemphill,  2  W.  N.  C. 
323;  Harrison  v.  McCana,  11  W.  N.  C.  239;  Estate  of 
McCann,  16  Phil.  224.] 

§  228.  On  these  decisions  (§§  220-227,  ante),  if  made 
in  any  other  jurisdiction,  no  criticism  could  justly  have 
been  passed.  There  was  no  departure  in  them  from 
the  generally  received  doctrines  of  law  or  equity.  They 
would  have  been  determined,  in  the  absence  of  statute, 
in  the  same  way  in  any  other  of  the  United  States,  or  in 
England.  [It  was  only  because  executions  at  law  were 
allowed  in  Pennsylvania  against  equitable  interests  gen- 

1  [Or,  to  speak  more  accurately,  income  to  accrue  after  judgment  against 
the  garnishee.  Shectz  v.  Hobcnsack,  20  Pa.  412.  Harrison  v.  McCana,  11 
W.  N.  C.  239.     Sergeant  on  Attachment,  108-112.] 


200  RESTRAINTS  ON   ALIENATION. 

orally,  while  they  were  denied  against  spendthrift  trusts, 
that  any  of  the  foregoing  cases  can  be  considered  as  de- 
cisions in  favor  of  the  validity  of  the  latter.  It  must  be 
admitted,  however,  that  the  dicta  of  the  judges  were  often 
in  their  favor.]  See  the  language  of  Coulter,  J.,  in  Norris 
v.  Johnston,  5  Pa.  St.  287,  and  Bell,  J.,  in  Eyrick  v. 
Eetrick,  13  Pa.  St.  488. 

§  229.  ShanMand's  Appeal,  47  Pa.  113  (18G4).  Devise 
to  trustees  to  collect  the  rents,  and  pay  over  the  same  to  A. 
for  life,  without  being  subject  to  his  debts  or  liabilities, 
and  on  his  death  over.  A.  agreed  to  sell,  and  B.  agreed  to 
buy,  all  A.'s  "  estate,  right,  and  interest "  under  the  testa- 
tor's will,  "  being  at  least  an  estate  for  the  term  of  his  own 
life,  ...  or  the  right  to  receive"  the  rents  of  the  property 
devised  during  his  life,  for  the  consideration  of  Si, 200,  to 
be  paid  on  the  execution  "  of  a  good  and  valid  conveyance 
or  assignment  of  all  and  singular  the  premises"  by  A.  to 
B.  during  A.'s  life.  B.,  discovering  the  nature  of  the 
trust,  refused  to  carry  out  the  agreement,  and  A.  brought 
a  bill  for  specific  performance.  The  Court  dismissed  the 
bill.  Bead,  J.,  giving  the  opinion  of  the  Court,  said  that 
no  creditor  could  touch  the  income.  The  bill  was  probably 
rightly  dismissed,  on  the  ground  that  it  was  the  belief  and 
expectation  of  the  parties  that  the  legal  title  was  to  be 
transferred.  Seep.  115.  If  the  case  cannot  be  supported 
on  this  ground,  then  here  for  the  first  time,  the  Supreme 
Court  of  Pennsylvania  made  an  actual  decision  in  equity 
in  favor  of  spendthrift  trusts. 

§  230.  Kcysers  Appeal,  57  Pa.  230  (1868).  A  restric- 
tion on  a  devise  in  fee  to  A.  in  trust  for  B.,  that  the  land 
should  not  be  liable  for  B.'s  debts  was  held  void.  See 
§§  115,  124  a,  et  seqq.,  ante. 


RESTRAINTS  ON  ALIENATION.  201 

§  2.31.  Rife  v.  Geyer,  59  Pa.  393  (18G8).  Devise  to 
B.  and  his  heirs  in  trust,  from  time  to  time,  to  let  and 
demise  the  land  devised,  recover  and  receive  the  rents, 
and  pay  over  the  same  when  received  into  the  hands  of 
S.,  or  such  person  as  he  might  authorize,  or,  at  B.'s 
option,  to  permit  and  suffer  S.  to  let,  demise,  occupy, 
and  enjoy  the  said  land,  and  receive  and  take  the  income 
thereof,  during  his  life,  for  his  own  separate  use,  and  so 
the  same  should  not  be  in  the  power,  or  liable  to  the 
debts,  control,  or  engagements  of  S.,  and  on  the  death  of 
S.  to  hold  the  land  in  trust  to  and  for  the  only  proper  use, 
benefit,  and  behoof  of  the  heirs  of  S.  B.  conveyed  the 
land  to  S.  by  a  deed  purporting  to  pass  the  fee.  The 
question  was  whether  S.  took  a  fee  simple  by  virtue  of 
the  Rule  in  Shelley  s  Case.  As  S.  had  an  equitable  life 
estate,  and  his  heirs  a  legal  remainder  in  fee,  the  rule  of 
course  did  not  apply.  And  matters  were  not  helped  by 
the  conveyance  of  the  trustee's  legal  life  estate  to  S. :  for, 
although  S.  then  had  the  legal  life  estate  and  the  legal 
remainder,  they  did  not  vest  in  him  by  the  same  con- 
veyance, and  therefore  did  not  come  within  the  Rule. 
Fearne,  C.  R.  71.  This  is  all  that  the  decision  comes 
to,  although  Sharswood,  J.,  in  delivering  the  opinion  of 
the  Court,  affirmed  the  validity  of  spendthrift  trusts. 

§  231  a.  CridlancVs  Estate,  7  Phil.  58  (1868).  The 
nature  of  the  proceedings  and  the  facts  of  the  case  are 
not  given ;  so  that  it  is  impossible  to  tell  what  was  the 
point  decided.  As  the  case  was  in  the  Orphans'  Court 
only,  the  decision,  if  known,  would  be  of  slight  authority. 

§  232.  Keyser  v.  Mitchell,  67  Pa.  473  (1871).  Property 
was  given  by  will  in  trust  to  collect  the  income,  and  to  pay 
it,  "  or  so  much  thereof  as  the  trustee  may  think  proper  and 


•202  RESTRAINTS   <>N    ALIENATION. 

expedient,  under  all  the  circumstances  of  the  case,  to  and 
for  the  maintenance  and  support  of  my  son  Charles,  (hiring 
all  the  term  of  his  natural  life,  with  the  intent  and  purpose 
that  the  said  trustee  may  either  pay  the  said  income,  or 
such  portion  thereof  as  lie  may  think  proper,  into  the 
hands  of  my  said  son,  or  disburse  the  same  in  such  way 
as  to  the  said  trustee  ma\  seem  best  for  his  comfortable 
support  and  maintenance,  such  payments  and  disburse- 
ments to  be  at  all  times  at  the  sole  and  absolute  discre- 
tion of  the  said  trustee."  It  was  held  that  the  trustee 
could  not  be  summoned  as  garnishee  of  Charles.  The 
decision  in  this  case  seems  open  to  no  remark ;  for  here 
not  merely  the  manner  and  time  in  which  Charles  was  to 
receive  the  income,  but  the  amount  to  be  received,  was  in 
the  discretion  of  the  trustee,  and  therefore,  in  accordance 
with  all  the  authorities,  as  Charles  had  no  right  to  any 
sum,  his  creditors  could  have  none.  [See  Horivitz  v. 
Norris,  49  Pa.  21.3,  222 ;  Huber's  Appeal,  80  Pa.  348.] 

§  233.  Buckman  v.  Wolbert,  9  Phil.  207  (1874) ;  s.  o. 
sub  nom.  Buchanan  v.  Wolbert,  2  W.  N.  C.  438.  Devise 
to  trustees  in  trust  to  pay  the  income  to  .1.  for  life,  the 
same  not  to  be  in  any  way  liable  for  any  present  or  future 
indebtedness  of  J.'s,  with  a  gift  over.  It  was  held  that 
the  accrued  income  of  this  trust  fund  could  not  be  reached 
by  an  "attachment  execution"  against  J. 

§  234.  Overmans  Appeal,  88  Pa.  276  (1879).  A  testator 
directed  that  the  income  paid  to  his  children  by  his  execu- 
tors should  be  free  from  his  children's  debts.  A  son  was 
one  of  the  executors.  Upon  the  filing  of  the  executors' 
account,  they  were  surcharged  in  such  an  amount  that 
the  interest  thereon  exceeded  the  son's  share  of  income. 
At  the  first  hearing  it  was  held  that  the  son's  share  of 


RESTRAINTS   ON   ALIENATION.  203 

income  must  be  set  off  against  his  indebtedness  on  the 
executors'  account.  On  a  rehearing  the  decision  was 
reversed,  the  Court  saying  that  there  was  no  difference 
between  one  kind  of  liability  and  another.  It  is  hard  to 
see,  under  the  Pennsylvania  doctrine  of  spendthrift  trusts, 
how  this  result  could  be  avoided;  but  it  is  worth  while 
to  note  the  language  of  Chief  Justice  Agnew,  who  de- 
livered the  opinion  of  the  court  on  the  first  argument, 
because  it  shows  how  experience  has  taught  some  of  the 
judges  in  Pennsylvania  to  regard  the  doctrine  of  spend- 
thrift trusts.  He  says:  "It  [a  spendthrift  trust]  is  ex- 
ceptionable in  its  very  nature,  because  it  contravenes  that 
general  policy  which  forbids  restraints  on  alienation  and 

the  non-payment  of  honest  debts A  trust  to  pay 

income  for  life  may  last  for  the  longest  period  of  human 
existence,  and  may  run  for  seventy  or  eighty  years.  While 
the  law  simply  tolerates  such  a  trust,  it  cannot  approve  of 
it  as  contributing  to  the  general  public  interest.  Property 
tied  up  for  half  a  century  contributes  nothing  to  the  gen- 
eral wealth,  while  it  is  a  great  stretch  of  liberality  to  the 
ownership  of  it  to  suffer  it  to  remain  in  this  anomalous 
state  for  so  many  years  after  its  owner  has  left  it  behind 
him.  Clearly  it  is  against  public  interest  that  the  prop- 
erty of  an  after  generation  shall  be  controlled  by  the  deed 
\jqu.  dead]  of  a  former  period,  or  that  the  non-payment  of 
debts  should  be  encouraged." 

§  234  a.  The  learned  reader's  attention  is  again  called 
to  the  fact  that  until  Overmans  Appeal,  in  the  year  1879 
(with  the  possible  exception  of  Shankland's  Appeal,  §  229, 
ante,)  the  only  question  determined  by  the  Supreme  Court 
of  Pennsylvania  on  the  matters  here  discussed  was  how 
far  the  operation  of  an  execution  at  law  should  be  extended 


204  RESTRAINTS   ON    ALIENATION. 

over  equitable  interests,  and  that  all  the  cases  before  that 
time  by  which  thai  Court  is  supposed  to  have  established 
the  doctrine  of  the  validity  of  spendthrift  trusts  might  and 
would  have  been  decided  as  they  were  by  a  court  which 
utterly  repudiated  that  doctrine,  —  the  English  Court  of 
Chancery,  for  example. 

£  235.  In  Overman's  A]>/>r<t/,  the  Court  thought  itself 
forced  by  its  previous  dicta  and  decisions  to  hold  that  the 
share  of  a  child  in  the  paternal  property  was  not  liable  to 
make  up  to  his  brothers  and  sisters  the  shares  of  which 
his  gross  mismanagement  had  deprived  them.  It  is  small 
wonder  that  to  some  of  the  judges,1  as  appears  by  the 
opinion  of  Chief  Justice  Agnew,  the  doctrine  now  shows 
itself  in  another  guise  from  that  which  it  bore  when  it 
was  welcomed  as  "favored  and  sustained  by  the  law,  as 
suggested  by  the  best  feelings  of  our  nature,  and  doing 
harm  to  no  one/'  See  13  Pa.  491,  and  5  Pa.  289.  It 
would  seem  that  courts  of  other  States,  which  are  asked 
to  support  spendthrift  trusts  on  the  authority  of  the  Penn- 
sylvania Supreme  Court,  may  well  hesitate  to  adopt  a  doc- 
trine which  the  Chief  Justice  of  that  Court  has  declared  to 
contravene  that  general  policy  of  the  law  "  which  forbids 
restraints  on  alienation  and  the  non-payment  of  honest 
debts." 

§  235  a.  [In  Thackara  v.  Mintzer,  100  Pa.  151,  it  was 
held  that  a  spendthrift  trust  was  good  as  against  a  claim  for 
alimony,  and  in  Guardians  of  the  Poorx.  Mintzer,  10  Phil. 
449,  under  the  same  trust,  it  was  held  by  the  Quarter  Ses- 
sions of  Philadelphia  that  the  income  could  not  be  taken 
for  the  support  of  the  wife  and  children  of  the  cestui  que 

1  Not  to  all,  however.  Mr.  Justice  Woodward  still  thinks  that  these 
trusts  have  "produced  beneficent  and  just  results."     (88  Pa.  286.) 


RESTRAINTS   ON  ALIENATION.  205 

trust,  who  had  deserted  them.  But  in  Decker  v.  Directors 
of  the  Poor,  120  Pa.  2/2,  land  was  devised  to  a  trustee  in 
trust  that  he  should,  every  six  months,  pay  over  to  D.  all 
the  rents  of  the  land,  and  the  trustee  had  the  power,  with 
the  written  consent  of  D.,  to  sell  the  land  and  pay  over  the 
proceeds  to  D.,  thus  terminating  the  trust.  The  Supreme 
Court  held  that  this  income  could  be  taken  for  the  support 
of  D.'s  wife  and  child,  whom  he  had  deserted.  The  trust 
here  would  hardly  seem  to  have  been  a  spendthrift  one, 
but  the  Court  say,  "  It  is  unnecessary  to  determine  what 
is  the  nature  and  extent  of"  D.'s  "interest  in  the  land 
or  the  proceeds  thereof."  And  in  Board  of  Charities  v. 
Moore,  6  Penn.  C.  C.  66,  19  Phil.  540,  where  property 
had  been  devised  to  trustees  in  trust  to  pay  the  income 
quarterly  to  the  testator's  three  children  "without  being 
in  any  wise  liable  to  or  for  any  debts,  claims,  liabilities, 
contracts,  or  obligations  they  or  either  of  them  "  might 
make,  "  and  so  that  the  same  shall  not  be  diverted  from 
his  or  her  personal  use  and  maintenance,  and  the  main- 
tenance of  the  wife  (if  any)  and  minor  children  of  either  of 
my  said  sons,"  the  Quarter  Sessions  of  Philadelphia  held 
that  the  income  could  be  reached  for  the  benefit  of  the 
wife  and  minor  son  of  one  of  the  testator's  sons,  and,  out 
of  an  income  of  $4,000,  81,200  was  ordered  to  be  paid  by 
the  trustee  for  the  benefit  of  the  wife  and  son.  A  like 
decision  was  made  by  the  same  court  in  Board  of  Charities 
v.  Kennedy,  34  W.  N.  C.  83.] 

§  235  6.  [The  Pennsylvania  statute  of  April  18,  1853, 
§  9,  is,  in  its  general  scope,  similar  to  the  Thelluson  Act, 
and  forbids  accumulations  except  during  actual  minorities. 
On  the  effect  of  this  upon  spendthrift  trusts,  see  Gray,  Rule 
against  Perpetuities,  §§  720-/22  6,  and  authorities  there 


206  RESTRAINTS  ON    ALIENATION. 

cited,  and  also  the  late  cases  of  Eberly's  Appeal,  110  Pa. 
95  ;  Schwartz's  Appeal,  11(.)  Pa.  337  :  Brooks's  Estate,  140 
Pa.  84;  Hibbs's  Estate,  143  Pa.  217;  Ashhurst's  Estate, 
18  Phil.  37;  blitz's  Estate,  Id.  Ill;  Mitchesoris  Estate, 
5  Pa.  C.  C.  9!) ;  s.  0.  22  W.  X.  C.  46  ;  Levy's  Estate,  1  Pa. 
Dist.  Ct.  217-] 

§  235  c.  [Stambaugh's  Estate,  135  Pa.  585.  A  testator 
directed  that  property  should  be  placed  in  the  hands  of  S., 
whom  he  appointed  trustee,  to  hold  the  sum  for  M.,  S.  to 
pay  the  interest  yearly  accruing  from  the  same  to  M.  after 
deducting  taxes  and  necessary  expenses,  and  upon  the 
death  of  M.  over.  M.  had  failed  and  made  an  assignment 
for  his  creditors  shortly  before  the  making  of  the  will.  The 
Court  held  this  to  be  a  spendthrift  trust,  at  any  rate  as 
between  trustee  and  cestui  que  trust;  and  that  if  the  trus- 
tee paid  over  the  principal  of  the  trust  fund  on  the  order 
of  M.  and  the  remaindermen,  he  was  still  liable  to  M.  for 
the  income.  This  case  goes  farther  than  any  other  decis- 
ion in  Pennsylvania  has  yet  gone,  and  stops  little  short  of 
deciding  that  every  equitable  life  interest  is  inalienable.] 

§235t/.  [But  in  Kuntzlemans  Estate,  136  Pa.  142, 
property  was  given  by  a  testator  to  trustees  in  trust  for  his 
sons,  not  to  be  subject  to  their  debts,  and  also  other  prop- 
erty to  trustees  in  trust  to  invest  the  property  and  pay  the 
income  to  his  daughter,  then  five  years  old,  for  her  sole  and 
separate  use,  upon  her  separate  receipt,  without  the  con- 
trol or  interference  of  any  husband,  and  upon  her  death 
over.  The  Court  held  that  for  the  sake  of  the  remainder- 
men this  trust  for  the  daughter  must  be  considered  as  ac- 
tive, but  there  is  a  dictum  that  it  was  intended  as  a  trust 
for  coverture  and  not  as  a  spendthrift  trust.] 

§  235  e.   [Again  in  King's  Estate,  147  Pa.  410,  a  testa- 


RESTRAINTS  ON  ALIENATION.  207 

tor  gave  property  to  a  trustee  in  trust  to  invest,  to  collect 
the  income,  and  to  pay  it  over  to  the  testator's  wife  during 
her  life,  but  upon  her  sole  separate  receipt  or  order  in 
writing,  to  be  from  time  to  time  and  not  by  anticipation 
given,  and  at  her  death  to  pay  over  as  she  might  by  will 
appoint ;  and  he  directed  that  the  trustee  should  see  that 
none  of  the  income  should  go  or  be  paid,  directly  or  indi- 
rectly, to  any  of  his  wife's  collateral  relatives,  and  that  the 
trustee  should  not  permit  them  to  enter  the  testator's  house. 
The  will  was  in  dispute,  and  the  trustee  did  not  collect  the 
income,  but  he  advanced  money  to  the  widow  from  time 
to  time,  not  faster,  however,  than  it  was  in  fact  accruing. 
The  Court  held  that  when  he  did  collect  the  income  he 
could  retain  against  his  advances.  This  may  be  right,  but 
the  language  of  the  Court  is  remarkable.  The  cestui  que 
trust,  they  say,  "was  as  much  in  fault,  in  violating  the 
clause  against  anticipation,  as  the  trustee  was  in  making 
payments.  She  has,  therefore,  no  equity  to  be  heard 
against  her  own  wrongdoing,  and  we  regard  her  as  es- 
topped from  saying  she  had  no  right  to  receive  the  money 
on  account  of  the  clause  against  anticipation."  Such  a 
line  of  argument  is  destructive  of  spendthrift  trusts 
altogether.] 

§  235/  [Mehaffey's  Estate,  139  Pa.  276.  A  testator 
devised  land  to  E.  in  trust  to  let  it,  receive  the  rents  and 
pay  them  over  to  M.  "  or  to  such  person  or  persons  as  he 
may  authorize  to  receive  the  same,  or  at  the  option  of  said 
trustee  to  permit  him  to  occupy  and  enjoy "  the  land  for 
life,  "  for  his  own  separate  use,  so  that  the  same  shall  not 
be  in  his  power  or  liable  to  his  debts,  contracts,  or  engage- 
ments." A  share  of  the  residue  of  the  estate  was  also 
directed  to  be  held  by  the  executors  in  trust  to  pay  the 


208  RESTRAINTS   ON    ALIENATION. 

income  one  half  to  C.  and  one  half  to  M.  for  life,  "  or  to 
such  person  or  persona  as  they  shall  severally  authorize  to 
receive  the  same,  without  any  liability  tor  any  debts,  con- 
tracts, or  engagements  which  they  may  make."  Alter  the 
death  of  the  testator,  M.  gave  S.  an  order  on  the  trustee  to 
pay  the  amount  of  a  judgment  which  had  been  recovered 
before  the  testator's  death.  Held,  that  S.  was  not  entitled 
to  receive  from  the  trustee  income  accrued  after  the  date 
of  the  order.] 

§  235  g.  [Halm  v.  Hutchinson,  159  Pa.  133.  A  testa- 
trix  gave  all  her  property  to  her  husband  "in  trust,  he  to 
have  the  entire  control,  so  long  as  he  may  desire,  of  the 
same,  and  use  so  much  of  the  income  thereof  as  he  may 
desire,  but  I  especially  direct  that  the  same  shall  not  be 
subject  to  or  liable  for  the  payment  of  any  individual  debts 
that  he  may  now  owe  or  hereafter  contract,"  or  to  any  pro- 
cess for  the  collection  of  the  same,  but  "  is  to  be  paid  into 
his  own  hand,  and  cannot  be  anticipated,  sold,  or  pledged." 
He  was  to  have  entire  control  of  the  trust  estate,  was  not 
to  be  called  upon  for  an  account,  and  could  by  will  change 
the  proportions  of  the  gifts  to  the  children  of  the  testatrix 
made  in  the  will.  It  was  held  that  the  husband's  interest 
was  liable  for  his  debts.     See  §  134,  ante.] 

§  235  h.  [On  spendthrift  trusts  see  also  Barker's  Estate, 
159  Pa.  518,  §  124  h,  ante ;  Oak/orcl's  Estate,  4  Pa.  C.  C. 
465 ;  Brubaker  v.  Huber,  13  Pa.  C.  C.  78.] 

§236.  Massachusetts. — The  Massachusetts  cases  are 
as  follows :  —  Braman  v.  Stiles,  2  Pick.  460.  A  testator 
devised  his  property  to  his  children,  but  directed  that  the 
share  of  his  son  Jonas  "  shall  be  deposited  by  my  executor 
in  the  hands  of  my  sons  Luther  Stiles  and  Barney  Stiles, 
and  be  retained  by  them,  and  dealt  out  to  the  said  Jonas 


RESTRAINTS   ON   ALIENATION.  209 

for  his  comfort  and  advantage,  according  to  their  best 
judgment  and  discretion."  He  gave  his  executor  power  to 
sell  all  of  his  real  estate.  The  share  of  Jonas  in  the  real 
estate  was  attached  by  his  creditors.  Subsequently  the 
executor  sold  all  the  testator's  real  estate  under  the  power. 
It  was  held  that,  whatever  the  interest  of  Jonas  in  the  real 
estate  might  be,  it  was  devested  by  the  executor's  exercising 
the  power.  The  case  derives  its  importance  entirely  from  a 
dictum  of  Parker,  C.  J.  He  says  (p.  464) :  "  Nothing  can 
be  more  clear  than  that  the  testator,  by  these  words,  in- 
tended that  his  sons  Luther  and  Barney  should  be  the 
trustees  of  Jonas  as  to  everything  which  was  the  subject 
matter  of  this  provision  ;  and  such  intention  was  lawful, 
for  he,  having  the  power  of  disposing  of  his  property  as  he 
pleased,  had  a  right  to  prevent  it  from  going  to  the  credi- 
tors of  his  son,  or  from  being  wasted  by  the  son  himself,  if, 
as  was  probable,  he  had  become  incapable  of  taking  care  of 
property.  Creditors  have  no  right  to  complain  ;  for  unless 
such  disposition  can  be  made,-  without  doubt  testators  in 
like  situations  would  give  their  property  to  their  other  chil- 
dren." This  remark,  that  an  equitable  interest  in  fee  sim- 
ple (not  a  life  interest)  can  be  kept  from  the  creditors  of 
the  cestui  que  trust,  is  contrary  to  the  whole  weight  of 
decision,  even  in  Pennsylvania.  There  is  absolutely  no 
authority  for  it  whatever.  See  §§  122,  123,  ante.  [But 
see  now  §§  124  a- 124  k,  ante.'] 

§  237-  In  Perkins  v.  Hays,  3  Gray,  405,  a  testator  di- 
rected his  executors  to  pay  an  annuity  to  his  wife  on  her 
separate  order,  and,  in  case  of  her  incapacity,  through  sick- 
ness or  any  other  cause,  to  receive  the  payments  herself  or 
upon  her  separate  order  at  any  time  during  her  life,  then 
to  pay  the  same  to  any  persons  lawfully  appointed  to  rep- 

14 


210  RESTRAINTS  ON    ALIENATION. 

resent  her,  and  in  default  of  such  appointment  then  to 
apply  the  same  to  the  support  and  maintenance  of  his 
wife,  and  the  support,  maintenance,  and  education  of  his 
children  under  twenty-one,  and  on  her  death  over.  The 
widow  married  again,  and  assigned  the  annuity  to  pay  her 
second  husband's  debts.  It  was  held  that  she  was  re- 
strained from  anticipating  her  annuity.  The  ease  does  not 
really  bear  on  the  question  under  consideration,  as  the  an- 
nuitant was  a  feme  covert  at  the  time  of  the  assignment, 
and  the  only  matter  in  discussion  was  whether  the  restraint 
on  anticipation  which  could  have  been  imposed  was  so 
imposed  in  fact. 

§  238.  Pal mev  v.  Stevens,  15  Gray,  343.  A  testator 
devised  property  to  trustees  in  trust  to  pay  to  his  son,  for 
his  sole  use,  on  his  sole  receipt,  the  income  thereof,  and  also 
any  part  of  the  principal,  if  necessary  for  the  comfort,  sup- 
port, and  education  of  himself  or  children,  with  remainder 
over.  It  w;is  held  that  the  principal  could  not  be  assigned 
by  the  son,  because  his  only  right  was  upon  a  contingency 
which  might  never  happen,  and  until  that  contingency  the 
right  was  in  the  remaindermen  ;  but  that,  "  on  the  other 
hand,  his  right  to  the  income  annually  is  complete  and  ab- 
solute, and  as  much  subject  to  his  disposal  as  any  other 
interest  in  property ;  Foley  v.  Bumell,  1  Bro.  C.  C.  274  ; 
Brandon  v.  Robinson,  18  Vcs.  429;"  and  that  therefore 
an  assignment  of  the  income  was  good. 

£  l'.I!).  Ames  v.  Clarke,  10G  Mass.  5/3.  A  testatrix 
gave  to  W.  an  annuity  to  be  paid  by  her  executor  quar- 
terly, and  directed  "that  no  part  of  this  bequest,  while  re- 
maining in  the  hands  of  my  executors,  shall  ever  be  liable 
for  any  of  the  debts  of"  W.  W.  assigned  the  annuity  to 
G.  and  the  executor  made  the  quarterly  payments  to  G. 


RESTRAINTS   ON   ALIENATION.  211 

Held  tliat  W.  could  not  recover  the  amount  of  these  pay- 
ments as  arrears  from  the  executor.  [Is  this  case  to  be 
considered  as  overruled  by  Broadway  Bank  v.  Adams,  133 
Mass.  170,  §  240  6,  post?  See  Beck's  Estate,  133  Pa.  51, 
§  124  c,  ante;  Goes  Estate,  146  Pa.  431,  §  124/,  ante.] 

§  240.  Hall  v.  Williams,  120  Mass.  344.  Devise  to 
trustees  to  pay  the  income  to  the  testator's  children,  pro- 
vided that,  if  either  of  them  "  shall  be  wanting  in  thrift 
and  care,  or  a  sound  discretion  in  the  use  of  money,  or  the 
guardian  or  guardians,  or  other  representatives,  of  either  of 
them,  be  in  doubtful  relations  as  to  his,  her,  or  their  judg- 
ment and  discretion  as  to  the  proper  use  of  money,  in  each 
and  every  such  case  the  trustees  and  trustee  for  the  time 
being  are  hereby  ordered  and  charged  with  paying  and  dis- 
bursing the  same  in  such  way  and  ways  as  shall  be  most 
likely  to  make  the  same  enure  and  be  beneficial  to  such 
recipient's  husband,  wife,  child  or  children,  or  otherwise 
beneficial  to  such  recipient  in  the  way  of  his  or  her  educa- 
tion, or  advancement,  or  support,  exercising  in  all  such 
case  and  cases  the  judgment  that  would  be  to  be  expected 
from  a  good  father  to  each  of  such  recipients  respectively." 
Held  that  this  income  was  not  liable  to  be  reached  for  the 
debts  of  any  of  the  children.  This  decision  is  entirely  in 
accordance  with  the  English  cases,  there  being  no  certainty 
as  to  the  person  entitled  to  the  income.  See  Brigden  v. 
Gill,  16  Mass.  522;  Chase  v.  Chase,  2  Allen,  101  ;  Wil- 
liams v.  Bradley,  3  Allen,  270 ;  Loring  v.  Loring,  100 
Mass.  340 ;  Minot  v.  Tappan,  127  xMass.  333. 

§  240  a.  Sparhawk  v.  Cloon,  125  Mass.  263.  Devise  by 
a  woman  to  C.  in  trust  "  for  the  sole  use  and  support "  of 
P.,  the  husband  of  the  testatrix.  The  trustee  was  empow- 
ered "  to  relieve  himself  from  trouble  and  care  by  appoint- 


212  RESTRAINTS   ON    ALIENATION. 

ing  my  husband  his  agent  or  attorney.  A  receipt  or  a 
written  assent,  signed  by  my  husband,  shall  free  said  trus- 
tee from  legal  liability  for  any  money  paid  by  him,  or  for 
an\  act  he  may  perform  as  my  trustee;"  and  the  trustee 
was  directed  "to  convey  by  deed  any  part  or  all  of  my 
estate  to  such  associations,  person  or  persons,  as  my  hus- 
band may  designate  and  propose  hereafter  by  certified 
written  authority,  leaving  with  my  husband  to  fix  the  time 
of  any  such  conveyance."  It  was  held  that  the  husband's 
interest  could  be  reached  by  a  creditor  on  a  bill  in  equity. 
As  the  interest  was  absolute,  the  decision  could  hardly  be 
otherwise.1  The  opinion  states  the  question  whether  an 
equitable  life  estate  can  be  made  inalienable  or  free  from 
debts,  and  cites  several  cases  as  authorities  on  one  side  or 
the  other,  but  gives  no  intimation  of  how  it  should  be  de- 
cided. It  is  noticeable,  that,  of  the  eight  cases  cited  by 
the  court  as  supporting  the  validity  of  such  restrictions,  not 
one  (not  even  Rife  v.  Geyer,  59  Pa.  St.  393,  §  231,  ante) 
contains  anything  except  obiter  dicta  to  that  effect;  and 
indeed,  at  the  time  of  this  decision,  White  v.  Thomas,  8 
Bush,  661,  §  190/*,  ante,  was  probably  the  only  reported 
ease,  at  any  rate  outside  of  Pennsylvania,  in  which  such 
restrictions  had  been  distinctly  held  valid. 

§  240  b.  In  Massachusetts,  therefore,  the  only  thing  in 
the  least  tending  to  support  the  validity  of  restraints  on 
the  alienation  of  equitable  life  estates  was  the  dictum  of 
Parsons,  C.  J.,  in  Braman  v.  Stiles,  2  Pick.  460,  464, 
vj  236,  ante.     (The  slight  weight  to  be  attached  to  this 

1  If  this  decision  does  not  overrule  Russell  v.  Grinncll,  105  Mass.  425, 
§  120,  ante,  it  shows  that  that  case  is  no  authority  for  the  proposition  that 
equitable  fees  or  absolute  interests  given  for  support  cannot  be  reached  for 


RESTRAINTS   ON   ALIENATION.  213 

dictum  is  shown,  §§  122,  123,  ante.)  On  the  other  hand, 
in  Palmer  v.  Stevens,  15  Gray,  343,  §  238,  ante,  Brandon 
v.  Robinson,  18  Ves.  429,  was  cited  as  authority.  It  may 
therefore  fairly  be  said  that  the  question  had  not  been  deter- 
mined in  Massachusetts  when,  in  1882,  Broadway  Bank  v. 
Adams,  1 .'!;}  Mass.  170,  was  decided  by  the  Supreme  Judicial 
Court.  In  that  case  A.,  by  will,  gave  his  executors  $"5,000 
in  trust  to  invest  the  same  and  pay  the  net  income  thereof 
to  his  brother  C.  "  during  his  natural  life,  such  payments 
to  be  made  to  him  personally  when  convenient,  otherwise 
upon  his  order  or  receipt  in  writing ;  in  either  case  free 
from  the  interference  or  control  of  his  creditors,  my  inten- 
tion being  that  the  use  of  said  income  shall  not  be  antici- 
pated by  assignment."  On  C.'s  death  there  was  a  gift  over. 
Creditors  of  C.  brought  a  bill  in  equity  against  the  execu- 
tors to  reach  and  apply  the  income  of  the  trust  fund.  The 
Court  say  that  the  point  presented  has  never  been  expressly 
decided,  but  that  "  the  tendency  of  our  decisions,  however, 
has  been  in  favor  of  such  a  power  in  the  founder.  Braman 
v.  Stiles,  2  Pick.  460  [§  236,  ante].  Perkins  v.  Hays,  3  Gray, 
405  [§  237,  ante].  Russell  v.  Grinnell,  105  Mass.  425  [§  120, 
ante].  Hall  v.  Williams,  120  Mass.  344  [§  240,  ante].  Spar- 
hawk  v.  Cloon,  125  Mass.  263  [§  240  a,  ante]"  (p.  171.) 
They  admit  that  "  from  the  time  of  Lord  Eldon  the  rule  has 
prevailed  in  the  English  Court  of  Chancery,"  that  such  equi- 
table interests  can  be  reached  by  creditors  (p.  172) ;  "  but," 
they  add,  "  the  decisions  of  this  court  which  we  have  before 
cited  recognize  the  principle,  that,  if  the  intention  of  the 
founder  of  a  trust,  like  the  one  before  us,  is  to  give  to  the 
equitable  life  tenant  a  qualified  and  limited,  and  not  an 
absolute,  estate  in  the  income,  such  life  tenant  cannot  alien- 
ate it  by  anticipation,  and  his  creditors  cannot  reach  it  at 


■1 14  RESTRAINTS  ON   ALIENATION. 

law  or  in  equity."  (p.  173.)     This  departure  of  the  Court 
from  the  received  doctrines  of  equity  seems  to  be  due  to 
the  assumption,  that  "  the  only  ground  upon  which  it  [micIi 
a  trust]  can  be  held  to  be  against  public  policy  is  that  it 
defrauds  the  creditors  of  the  beneficiary."  (p.  173.)     The 
erroneous  character  of  this  assumption  will  be  shown  in 
connection  with  Nichols  v.  Eaton,  §§  258,  259,  post.     The 
extreme  character  of  this  case  of  Broadway  Bank  v.  Adams 
should   be  noticed.     The  trustees  had  no  discretion  even 
as  to  the  mode  or  time  of  payment.     The  cestui  que  trust 
was  entitled,  as  of  right,  semiannually,  to  the  income.    The 
case  holds  that  an  absolute  equitable  right  to  income  for 
life  can  be  freed  from  alienation  or  from  creditors  by  simply 
declaring  that  it  shall  be  so  freed.     It  extends  the  provis- 
ion against  anticipation,  invented  for   the   protection   of 
married  women,  to  all  the  world.     To  regard  this  as  a  re- 
turn to  the  true  principles  of  law  and  equity  from  illogical 
perversities  of  Lord  Eldon,  would,  it  is  submitted,  have 
been  impossible  to  the  learned  Court,  had  the  history  of  the 
doctrine  of  restraints  on  alienation  as  a  whole  been  present 
to  their  minds.     The  grounds  of  this  decision  are  discussed 
more  fully  in  the  remarks  upon  Nichols  v.  Eaton,  §§  255 
et  seq.,  post. 

§240c.  Foster  v.  Foster,  133  Mass.  179.  Property 
was  devised  to  trustees  in  trust,  at  their  discretion,  to  pay 
or  apply  the  income  of  the  fund  to  the  personal  benefit  or 
comfort  of  J.,  or  such  member  or  members  of  his  immedi- 
ate family  as  the  trustees  might  think  proper,  and  that  such 
income  should  not  be  subject  to  his  debts  or  assignable  by 
him  by  way  of  anticipation.  There  was  in  fact  a  gift  over 
on  J.'s  death,  though  this  does  not  appear  in  the  report. 
Here  J.  had  no  right  against  the  trustees,  and  it  was  held, 


RESTRAINTS   ON   ALIENATION.  215 

as  it  would  have  been  held  everywhere,  that  J.'s  creditors 
could  not  reach  the  income.  See  §§  100,  167,  170,  ante. 
On  the  validity  of  restrictions  against  the  alienation  of  an 
equitable  life  estate  where  the  life  tenant  is  the  settlor,  see 
Pacific  Bank  v.  Windfam,  133  Mass.  17 5;  [Jackson  v. 
Von  Zedlitz,  130  Mass.  342,  §§  208  a,  277  a,  post]. 

§  240  d.  Until  Broadway  Bank  v.  Adams,  133  Mass. 
170,  §  240  b,  ante,  there  was,  outside  of  Pennsylvania,  very 
little  in  the  State  courts  to  support  spendthrift  trusts,  and 
in  Pennsylvania  itself  judges  are  now  found  to  lament  that 
they  were  ever  established.  Overmans  Appeal,  88  Pa.  St. 
270,  §  234,  ante. 

§240e.  [In  Billings  \.  Marsh,  153  Mass.  311,  the 
Court  refused  to  make  any  distinction  between  an  individ- 
ual creditor  and  an  assignee  in  insolvency,  and  held  that  a 
spendthrift  trust  in  favor  of  a  debtor  could  be  reached  by 
the  latter  no  more  than  it  could  be  by  the  former.  And 
it  does  not  seem  as  if  there  were  any  difference  between 
the  cases.] 

§  240/.  [Baker  v.  Brown,  140  Mass.  309.  A  testatrix 
expressed  her  desire  that  her  husband  should  have  his  sup- 
port out  of  her  property  during  his  life ;  "  therefore  "  all 
the  residue  of  her  estate  she  gave  to  two  daughters  "  sub- 
ject to  the  condition  that  they  support  their  father  during 
his  life."  Slattery  v.  Wason,  151  Mass.  200.  A  testator 
gave  property  in  trust  to  pay  A.  the  income  during  his  life, 
and  on  his  death  to  pay  the  principal  to  A.'s  children,  pro- 
vided that,  if  A.  should  leave  a  widow,  she  should  be  enti- 
tled to  her  support  out  of  the  same  so  long  as  she  should 
remain  A.'s  widow.  Wemyss  v.  White,  159  Mass.  484. 
The  trustees,  in  this  case,  could  "at  any  time,  in  the  exer- 
cise of  their  discretion,  discontinue  the  payment  of  the 


216  RESTRAINTS   ON   ALIENATION. 

income,  ami  apply  the  same  in  such  a  way  as  they  deem 
besl  for  the  beneficiary's  support  and  maintenance."  It 
was  held  in  each  of  these  cases  that  a  spendthrift  trust  had 
been  created.] 

§  240 f.  [On  the  other  hand,  in  Maynard  v.  Cleaves, 
1  1!»  Mass.  .'{<>",  in  which  case  a  testator  gave  his  wife  for 
life  the  use,  income,  and  benefit  of  all  his  estate,  real  and 
personal  to  be  for  her  support  and  maintenance,  trusting 
fthat  she  would  make  suitable  support  for  a  daughter  if  un- 
married, it  was  held,  after  the  daughter's  death,  that  the 
widow's  interest  could  be  reached  by  her  creditors.  In 
this  case  the  widow  would  seem  to  have  had  a  legal  life 
estate.     See  §  134,  ante."] 

$  240  £.  [Evans  v.  Wall,  159  Mass.  164.  A  testator 
gave  property  to  A.  in  trust  for  the  following  purposes: 
"The  income  thereof,  as  it  shall  become  due  and  payable, 
and  be  received  by  him,  to  pay  over  to  "  B.  "  for  and  during 
her  life."'  Held  that  an  assignee  in  insolvency  of  B.  could 
reach  this  income.] 

§  240  A.  [When  this  essay  was  first  published,  Pennsyl- 
vania and  Massachusetts  were  the  only  States  in  which 
actual  decisions  in  favor  of  spendthrift  trusts  had  been 
made,  and  the  weight  of  authority  throughout  the  country 
was  distinctly  the  other  way.  This  state  of  things  has 
greatly  changed.  In  five  States,  where  there  had  previously 
been  no  decision  on  the  question,  spendthrift  trusts  have 
now  been  held  good,  Illinois,  Maine,  Maryland,  Mississippi, 
and  Vermont.  (See  as  to  Wisconsin,  §§  194  a,  294  b,  ante. 
In  Vermont  there  had  been  perhaps  a  dictum  in  favor  of 
these  trusts,  in  the  other  States  it  was  a  novel  question.) 
In  Missouri,  although  a  previous  case  disallowing  a  restraint 
on  alienation  has  not  been  overruled,  it  has  been  supported 


RESTRAINTS  ON  ALIENATION.  217 

on  the  ground  that  the  settlement  was  of  the  beneficiary's 
own  property,  and  the  general  doctrine  of  the  invalidity  of 
spendthrift  trusts  on  which  that  case  went  has  been  repu- 
diated. In  Tennessee  it  had  been  held  that  spendthrift 
trusts  were  invalid,  and,  overruling  previous  decisions,  that 
they  were  not  validated  by  the  statutes  of  the  State ;  but 
this  last  determination  has  in  its  turn  been  overruled,  and 
it  is  now  held  that  such  trusts  are  good  under  the  statute, 
and  the  Supreme  Court  has  also  declared  that  they  would 
have  been  good  even  apart  from  the  statute.  Further,  in 
Delaware,  Indiana,  and  Virginia,  there  are  now  dicta, 
though  not  yet  decisions,  in  favor  of  spendthrift  trusts.] 

§  240  i.  [Illinois.  —  In  Steib  v.  Whitehead,  111  111.  247, 
a  testator  devised  land  to  a  trustee  in  trust  to  pay  the  in- 
come in  cash  into  the  hands  of  J.  in  person,  and  not  upon 
any  written  or  verbal  order,  nor  upon  any  assignment  or 
transfer  by  J.  The  trustee  was  summoned  as  garnishee  by 
reason  of  money  which  had  come  into  his  hands  on  account 
of  the  rents  of  the  trust  property,  and  which  it  was  his 
duty  to  pay  over  to  J.  The  Court  recognized  that  the  au- 
thorities were  not  in  accord.  "  The  question,"  they  say, 
"  so  far  as  we  are  advised,  is  a  new  one  in  this  Court,  and, 
in  view  of  the  respectable  authority  to  be  found  on  either 
side  of  it,  we  feel  at  liberty  to  adopt  that  view  which  is 
nearest  in  accord  with  our  convictions  of  right  and  a  sound 
public  policy."  They  decided  that  the  attachment  would 
not  hold.  "  The  tendency  of  present  legislation,"  they  add, 
"  is  to  soften  and  ameliorate,  as  far  as  practicable,  the  hard- 
ships and  privations  that  follow  in  the  wake  of  poverty  and 
financial  disaster.  The  courts  of  the  country,  in  the  same 
liberal  spirit,  have  almost  uniformly  given  full  effect  to  such 
legislation.    The  practical  results  of  this  tendency,  we  think, 


218  RESTRAINTS   ON    ALIENATION. 

upon  the  whole,  have  been  beneficial,  and  we  are  not  in- 
clined to  render  a  decision  which  may  be  regarded  as  a  r<  fcro- 
grade  movement."  See  Springer  v.  Savage,  1  13  [11.301.] 
^  240,;.  [Maine.  —  Roberts  v.  Stevens,  84  .Me.  325.  A 
testator  gave  the  residue  of  his  estate,  after  the  payment  i  t' 
certain  legacies,  to  his  executor,  to  hold  in  trust  during  the 
lives  of  his  three  sons  and  of  certain  annuitants.  Snbject 
to  the  payment  of  the  annuities,  the  income  was  to  be  di- 
vided among  his  living  sons,  and  the  families  of  such  as 
might  have  deceased,  until  the  expiration  of  the  trust,  and 
then  to  the  testators  grandchildren  equally.  The  testator 
added:  "And  I  hereby  enjoin  it  upon  all  legatees,  annui- 
tants, and  other  parties  interested  in  the  provisions  of  this 
will,  not  to  make  any  arrangement  or  any  agreement  for 
a  change  in  such  provisions  of  the  trust  under  this  will,  or 
to  assign,  or  in  any  way,  directly  or  indirectly,  to  transfer 
or  make  over  any  claim  or  rights  they  may  have  by  virtue 
of  this  will,  or  to  pay  to  any  other  person  any  legacy  or 
annuity  or  any  part  thereof,  than  to  such  persons  as  are 
entitled  to  the  same  by  virtue  hereof,  on  the  penalty  of  the 
forfeiture  of  the  property  or  sum  so  assigned  or  paid,  to  go 
to  that  part  of  my  estate  which  is  applied  to  the  benefit  of 
those  persons  interested  under  the  residuary  clauses  of  this 
will,  other  than  such  as  shall  make  said  payment  or  assign- 
ment." From  this  blind  clause  the  Court  extracted  an  in- 
tention on  the  part  of  the  testator  that  the  trustees  should 
not  pay  any  part  of  the  income  to  any  creditor  of  a  son, 
and  consequently,  upon  a  bill  by  a  creditor  of  one  of  the 
sons  to  satisfy  a  judgment,  the  Court  was  called  upon  to 
consider  whether  such  an  intention  on  the  part  of  the  tes- 
tator was  lawful.  They  held  that  it  was  lawful,  and  dis- 
missed the  bill.] 


RESTRAINTS   ON  ALIENATION.  219 

§  240  h   [Maryland.— Warner  v.  Rice,  66  Md.  436     A. 

conveyed  his  own  property  to  a  trustee  in  trust  for  the  use 
and  benefit  of  A.  himself  "  and  his  immediate  family,  free 
from  liability  for  any  of  his  debts,  contracts,  or  engage- 
ments, and  when,  if  so  by  said  trustee  found  requisite,  by 
him  deemed  proper,  to  apply  the  uses,  rents,  income,  and 
profits  to  the  support  and  maintenance  "  of  A.  and  his  said 
family  during  A.'s  life,  and  on  his  death  as  A.  should  by 
will  appoint.  The  Court  of  Appeals  held  that  A.'s  interest 
could  be  reached  by  his  creditors.  As  this  was  a  case 
where  the  person  having  the  equitable  life  interest  was 
himself  the  settlor  of  the  property,  the  creditors  would 
have  prevailed  in  any  jurisdiction  ;  see  §  268  a,  post;  but 
the  language  of  the  Court  gave  reason  to  suppose  that  it 
would  not  join  the  new  departure.] 

§  240  /.  [In  Smith  v.  Towers,  69  Md.  77,  however,  the 
Court  of  Appeals  gave  in  its  adhesion  to  the  doctrine  of  the 
validity  of  spendthrift  trusts  in  a  case  which  presented  that 
doctrine  in  the  extremest  form.  A  testator  devised  land 
to  a  trustee,  in  trust  to  pay  the  net  income  to  A.,  "into  his 
own  hands,  and  not  into  another,  whether  claiming  by  his 
authority  or  otherwise,"  during  A.'s  life,  and  on  his  death 
to  convey  the  same  in  fee  to  A.'s  children.  The  Court 
held  that  A.'s  interest  could  not  be  reached  by  his  credi- 
tors. Aivey,  C.  J.,  and  Bryan,  J.,  dissented.  The  opinion 
of  the  Court,  and  particularly  the  dissenting  opinion  of  the 
Chief  Justice,  are  by  far  the  best  discussions  of  the  ques- 
tion to  be  found  in  the  recent  cases.  See  also  Maryland 
Grange  Agency  v.  Lee,  72  Md.  161.] 

§  240  m.  [Mississippi.  —  In  Leigh  v.  Harrison,  69  Miss. 
923,  a  testatrix  gave  real  and  personal  property  to  A.  in 
trust  for  the  life  of  B.;  with  remainder  to  A.,  A.  to  use 


220  RESTRAINTS  ON   ALIENATION. 

the  rents  and  interest  for  the  support  of  B.  during  his 
life,  making  quarterly  payments  to  him  until  his  death. 
A  bill  in  equity  was  brought  by  a  judgment  creditor  of  B. 
to  reach  his  interest  under  the  trust.  The  Court,  in  an 
elaborate  opinion,  dismiss  the  bill.  They  say,  "  Our  stat- 
utes upon  the  subject  of  exemptions  indicate  a  clear  public 
policy  that  exemption  from  personal  pauperism  is  of  greater 
concern  than  the  rights  of  creditors."  See  §  263,  2^st. 
They  add  that,  if  there  appeared  to  be  an  accumulation  of 
income  over  and  above  the  sum  needed  for  the  support  of 
B.,  "  such  excess  would  seem  to  be  liable  to  creditors,  by 
reason  of  the  fact  that  the  whole  income  is  given  to  him, 
and,  as  to  such  excess,  the  direction  to  the  trustee  to  pay 
it  to  him  quarterly  would  be  absolute  and  unconditional." 
See  Tolland  County  Ins.  Co.  v.  Underwood,  50  Conn.  493, 
§  199  6,  ante;  Nickell  v.  Handly,  10  Grat.  330,  §245, 
post] 

§240».  Vermont.—  White  v.  White,  30  Vt.  338.  A 
sum  of  money  was  bequeathed  outright  to  A.  "  for  the  sup- 
port of  himself  and  family,  and  for  no  other  purpose."  The 
executors  paid  the  money  to  A.'s  attorney.  The  plaintiffs 
sued  A.,  and  summoned  the  attorney  as  garnishee,  or,  as 
he  is  commonly  called  in  New  England,  "  trustee."  The 
Court  held  that  A.  took  the  money  in  trust  for  himself  and 
his  family,  and  that  the  attorney  could  not  be  held  as  gar- 
nishee. The  interest,  that  is,  of  A.  in  the  money  in  the 
hands  of  the  attorney  was  either  an  interest  as  trustee  for 
himself  and  his  family,  or  an  interest  as  one  of  the  cestuis 
que  trust  under  that  trust.  So  far  as  it  was  an  interest  of 
A.  as  trustee,  it  was  not  subject  to  garnishment  by  a  pri- 
vate creditor  of  A.'s ;  so  far  as  it  was  an  interest  of  A.  as 
cestui  que  trust,  being  equitable,  it  could  not  be  reached  by 


RESTRAINTS   ON   ALIENATION.  221 

garnishment.  Hoy  I  v.  Swift,  13  Vt.  129.  Welter  v.  Wel- 
ler,  18  Vt.  55.  See  Roberts  v.  Hall,  35  Vt.  28 ;  Whit- 
comb  v.  Cardell,  45  Vt.  24.  On  this  question,  whether  the 
interest  of  a  trustee  who  is  also  one  of  the  cestuis  que  trust 
can  be  taken  on  execution  or  attached,  see  the  conflicting 
decisions,  §§  172,  173,  ante.  Its  determination  does  not 
touch  the  question  of  remedy  in  equity.  The  only  thing 
in  the  case  possibly  bearing  on  the  matter  now  in  hand  is 
a  dictum  of  Bennett,  J.  At  the  end  of  his  opinion  he  says 
(p.  344) :  "For  one  I  should  apprehend,  if  a  legacy  is  given 
to  a  son  for  his  support,  and  for  no  other  purpose,  a  trust 
would  be  created,  and  that  the  property  would  be  held 
subject  to  the  trust."  This  must  mean  that  such  a  legacy 
could  not  be  got  at  by  garnishment,  which  is  merely  a  ques- 
tion of  local  practice.  To  suppose  that  the  learned  judge 
meant  that  a  legacy  (not  merely  the  income  for  life,  but  the 
absolute  interest)  given  to  A.  for  his  own  support  could 
not  be  reached  in  equity  by  A.'s  creditors,  is  a  gratuitous 
and  most  improbable  assumption,  which  goes  far  beyond 
anything  to  be  found  either  in  England  or  America.  See 
§§  105-124,  ante.  There  is,  therefore,  no  reason  to  sup- 
pose that  the  rules  of  equity  would  be  departed  from  in 
Vermont. 

§  240  o.  [This  was  written  in  1883,  but  four  years  later, 
in  Barnes  v.  Dow,  59  Vt.  530,  the  Supreme  Court  of  Ver- 
mont took  up  with  the  new  doctrine,  basing  itself  mainly 
on  Mr.  Perry's  Treatise  on  Trusts.  A  testator's  will  read 
in  this  wise :  "  I  give,  devise,  and  dispose  to  my  nephew, 
Lewis  A.  Dow,  and  his  heirs,  all  of  my  effects  or  estate, 
both  real  and  personal,  except  the  support  of  my  sister, 
Hannah  Barnes,  during  her  lifetime.  And  I  give  my  es- 
tate in  trust  of  my  executor.    I  give  to  Hannah  Barnes,  my 


222  RESTRAINTS  ON    ALIENATION. 

sister,  her  support  during  her  natural  lifetime  out  of  my 
estate."  The  Court  held  that  the  executor  took  the  legal 
fee  of  the  land  devised;  that  the  sister  had  an  equitable 
life  interest  ;  and  that  this  interest  she  could  not  alienate.] 

$-2\()/>.  Missouri.  —  Mcllvaine  v.  Smith,  1-'  Mo.  45; 
Lackland  v.  Smith,  •">  .Mo.  App.  153.  A.  caused  land  to 
be  conveyed  to  B.  in  trust  to  pay  the  net  rents  quarterly  to 
A.  for  life,  such  payments  to  be  made  only  to  A.  in  person 
or  order,  without  any  power  of  anticipation  ;  and  if  A. 
should  attempt  to  anticipate  any  quarter's  income,  such 
quarter's  income  should  be  accumulated  for  those  in  the 
remainder;  with  remainders  over.  It  was  held  that,  al- 
though A.'s  interest  could  not  be  taken  on  execution,  it 
might  be  reached  by  creditor's  bill.  In  this  case  the  cestui 
que  trust  was  the  real  settlor,  but  the  Court  approve  the 
general  doctrine  as  laid  down  in  Brandon  v.  Robinson. 

§  240  r/.  [In  Pickens  v.  Dorris,  20  Mo.  Ap.  1,  the  St. 
Louis  Court  of  Appeals  held  that  an  equitable  life  estate 
could  be  reached  by  a  creditor  of  the  cestui  que  trust,  if 
there  was  no  clause  against  alienation,  but  the  Court  ex- 
pressed its  opinion  that  such  a  clause  would  be  valid  ;  and 
in  Lampert  v.  Haydel,  20  Mo.  Ap.  01(5,  the  same  Court 
made  a  decision  to  that  effect.  In  that  case  land  was  de- 
vised to  trustees  for  the  use  and  benefit  of  the  testator's 
three  sons  during  their  lives.  The  testator  added  that  his 
object  was  "  to  secure  to  my  children  a  certain  annual  in- 
come beyond  the  accident  of  fortune  and  bad  management 
on  their  part,  and  with  this  end  in  view  to  take  away  from 
them  the  power  of  disposing  of  the  same,  or  of  creating 
any  liens  thereon,  or  of  making  the  same  liable  in  any  way 
for  their  debts."  One  of  the  sons  assigned  all  his  interest 
in  the  trust.     It  was  held  that  the  trustee  was  justified 


RESTRAINTS   ON   ALIENATION.  223 

in  refusing  to  recognize  the  validity  of  the  assignment.  The 
case  was  carried  to  the  Supreme  Court  of  the  State,  and 
judgment  was  there  affirmed.  90  Mo.  439.  See  Jarboe  v. 
Hey,  122  Mo.  341,  351.] 

§  240  r.  [In  Partridge  v.  Cavender,  96  Mo.  452,  a  tes- 
tator gave  property  to  trustees  in  trust  for  the  use  and 
benefit  of  his  son,  and  directed  them  to  pay  the  income 
every  half-year  to  the  son  on  his  personal  receipt  without 
his  having  "any  power  to  sell,  assign,  or  pledge  the  same, 
previous  to  the  payment  thereof  to  him  as  aforesaid,  by 
way  of  anticipation."  The  Supreme  Court  held  that  the 
income  could  not  be  reached  by  a  judgment  creditor  of  the 
son.     See  Montague  v.  Crane,  12  Mo.  A  p.  582.] 

§  240  s.  [Bank  of  Commerce  v.  Chambers,  96  Mo.  459. 
A  bill  in  equity  alleged  that  a  woman  gave  the  residue  of 
her  estate,  real  and  personal,  to  a  trustee  in  trust  during 
the  life  of  the  husband  of  the  testatrix  to  pay  quarterly 
the  uet  income  into  the  proper  hands  of  the  husband  or 
such  person  as  he  might  in  writing  appoint,  and  on  his 
death  to  convey  and  pay  over  the  trust  property  to  those 
persons  who  should  then  be  the  heirs  of  the  testatrix ;  that 
the  testatrix  declared  that  her  sole  object  in  creating  the 
trust  was  that  she  might,  of  her  own  estate,  secure  to  her 
husband  an  ample  independence  for  his  life  "  free  from  the 
claims  and  demands  of  any  creditor  he  may  now  or  here- 
after have,  and  without  any  right  to  intervene,  or  sequester 
of  the  revenues  of  the  trust  for  the  payment  of  their  claims 
or  demands ; "  that  she  also  declared  that  the  provisions 
made  for  her  husband  were  upon  condition  that,  within  six 
months  after  probate  of  her  will,  her  husband  should  release 
any  right  he  might  have  as  tenant  by  the  curtesy;  that 
the  husband  released  his  right  as  tenant  by  the  curtesy ; 


224  RESTRAINTS   <>X    ALIENATION. 

and  that  the  plaintiff  was  a  judgment  creditor  of  the  hus- 
band. On  demurrer  the  Court  held  that  the  interest  given 
to  the  husband  by  his  wile's  will  was  not  a  mere  bounty, 
but  had  been  purchased  by  a  release  of  his  tenancy  by  the 

curtesy,  and  that  the  plaintiff  was  entitled  to  have  his  judg- 
ment satisfied  out  of  the  income  of  the  trust  fund.  See 
§  268  a,  poet.     Cf.  Jarboe  v.  Hey,  122  Mo.  341,  351.] 

§  240  t.  Tennessee.  —  In  the  Code  of  18555,  £§  4282- 
4284,  it  is  provided  that  a  judgment  creditor  may  file  a 
bill  in  equity  to  subject  to  the  satisfaction  of  the  judgment 
property  held  in  trust  for  the  debtor  which  cannot  be 
reached  by  execution,  "  except  when  the  trust  has  been 
created  by,  or  the  property  so  held  has  proceeded  from, 
some  person  other  than  the  defendant  himself,  and  the 
trust  is  declared  by  will  duly  recorded,  or  deed  duly  regis- 
tered." This  was  at  first  interpreted  as  meaning  that, 
if  the  trust  property  had  proceeded  from  some  person  other 
than  the  defendant  himself,  and  the  trust  was  declared  by 
will  duly  recorded,  or  deed  duly  registered,  it  could  not  be 
reached  by  bill  in  equity.  Johnson  v.  Hurley,  3  Tenn.  Ch. 
258.  Staub  v.  Williams,  5  Lea,  458.  And  see  Nichols  v. 
Levy,  5  Wallace,  433. 

§  240  u.  But  in  Turley  v.  Masscngill,  7  Lea,  353,  a 
testator  devised  all  his  property  to  his  son,  and,  by  codicil, 
directed  that  it  should  be  vested  in  a  trustee  for  the  use 
and  benefit  of  the  son,  and  that  no  part  of  it  should  be 
liable  for  any  debt  of  the  son,  but  that  the  son  might  use 
the  rents  and  profits  for  his  support  and  that  of  the  testa- 
tor's wife,  and  should  have  the  right  to  dispose  of  it  by 
will.  The  testator's  widow  died.  It  was  held  that  a  judg- 
ment creditor  of  the  son  could  maintain  a  bill  in  equity  to 
have  the  property  applied  to  his  debt.     The  son's  interest 


RESTRAINTS   ON   ALIENATION.  225 

seems  to  have  been  considered  an  absolute  legal  estate  in 
fee,  and  not  an  equitable  life  estate,  but  the  Court  quote 
with  approval  the  remark  of  Svvaync,  J.,  in  Nichols  v.  Levy, 
5  Wall.  433,  441,  that  "it  is  a  settled  rule  of  law  that  the 
beneficial  interest  of  the  cestui  que  trust,  whatever  it  may 
be,  is  liable  for  the  payment  of  his  debts.  It  cannot  be  so 
fenced  about  by  inhibitions  and  restrictions  as  to  secure  to 
it  the  inconsistent  characteristics  of  right  and  enjoyment  to 
the  beneficiary  and  immunity  from  his  creditors." 

§  240  v.  A  later  decision  of  the  Supreme  Court  of  Ten- 
nessee [was  supposed  to  have]  settled  the  law  for  that 
State.  In  Hooberry  v.  Harding,  3  Tenn.  Ch.  6/7,  s.  c. 
on  appeal,  10  Lea,  392,  Rachel  Stump  devised  and  be- 
queathed property,  real  and  personal,  to  trustees  in  trust  to 
suffer  and  permit  her  son,  Philip  S.  Stump,  during  his  life 
to  have  and  receive  from  the  income  of  the  property,  for 
his  support  and  maintenance,  such  sums  and  amounts  as 
he  might  deem  proper,  "  in  such  manner,  however,  as  that 
the  same  shall  not  be  liable  to  his  debts,  or  for  contracts 
made  by  him  ; "  and  in  trust  to  suffer  and  permit  said  son 
"  to  have  and  to  exercise  such  control  over  the  slaves  and 
real  estate  hereby  bequeathed  and  devised,  in  the  cultiva- 
tion and  renting  of  the  one  or  hiring  or  working  the  others, 
for  one  year  at  a  time,  as  he,  said  Philip  S.,  may  deem 
proper ;  in  such  manner,  however,  only  that  said  Philip  S. 
may  derive  a  support  therefrom,  and  that  the  same  shall 
not  be  liable  for  his  debts  or  contracts ;  it  being  my  inten- 
tion to  provide  for  said  Philip  S.,  out  of  the  issues  of  said 
property,  a  sum  sufficient  for  his  support ;  of  the  amount 
of  which  sum  said  Philip  S.  is  to  be  judge."  There  was  a 
gift  over  on  the  son's  death  to  his  children.  The  testatrix 
added :  "  I  hereby  declare  it  to  be  my  intention,  by  the  be- 

15 


22G  RESTRAINTS   OX   ALIENATION. 

quest  and  devise  to  trustees  above,  to  provide  a  support 
for  my  Bon  Philip  S.  out  of  my  estate,  and  not  to  vest  in 
him  any  interest  in  said  property  which  may  or  can  be  sub- 
jected to  debts  or  contracts  made  or  entered  into  by  him." 
A  creditor  of  the  son  recovered  judgment  against  him,  and 
levied  execution  on  his  interest  in  the  land  and  on  the  prod- 
uce of  the  land.  The  son  and  his  children  filed  a  bill  to 
enjoin  any  sale  on  the  execution,  and  thereupon  the  cred- 
itor filed  a  cross-bill  in  which  he  sought  to  subject  the 
profits  of  the  land  and  the  son's  interest  in  it  to  the  satis- 
faction of  his  judgment.  Chancellor  Cooper  held  that  the 
trust  was  an  active  one ;  that  therefore  the  son  had  only 
an  equitable  interest,  which  could  not  be  taken  on  execu- 
tion ;  and  that  the  sections  of  the  Code  above  cited  (§  240 1, 
ante)  prevented  the  creditor  from  having  any  remedy  in 
equity.  The  case  was  carried  by  appeal  to  the  Supreme 
Court.  There  the  decision  of  the  Chancellor  that  the  trust 
was  an  active  one,  and  that  therefore  the  son  had  only  an 
equitable  interest  which  could  not  be  taken  on  execution 
at  law,  was  affirmed ;  but  his  ruling  on  the  other  point  was 
reversed,  and  it  was  held  that,  notwithstanding  the  lan- 
guage of  the  Code,  the  life  estate  of  the  son  was  subject 
in  equity  to  the  satisfaction  of  the  judgment  against  him. 
There  never  seems  to  have  been  any  doubt  in  Tennessee 
that,  apart  from  statute,  restraints  upon  the  alienation  of 
equitable  life  interests  were  invalid;  and  this  last  decision 
held  that  the  language  of  the  Code,  strong  as  it  was,  did 
not  make  them  good. 

§  240  to.  [But  there  is  now  a  complete  overturn  in  Ten- 
nessee. The  Supreme  Court  has  not  only  held  that  the 
Code  protects  spendthrift  trusts  from  creditors,  but  it  has 
said  that  such  trusts  are  good  even  apart  from  statute.    In 


RESTRAINTS  ON  ALIENATION.  227 

Jourolmony.  Massengill,  86  Tenn.  81,  the  same  will  as  was 
involved  in  Turley  v.  Massengill,  ubi  supra,  came  again 
before  the  Court.  The  question  was  whether  the  son's  in- 
terest could  be  taken  on  execution  at  law.  It  was  held 
that  the  interest  was  an  equitable  interest,  and  therefore 
not  subject  to  levy.  Whether  the  Court  thought  the  equi- 
table interest  was  for  life  only  or  in  fee  is  not  clear.  This 
is  all  that  was  decided.  But  Lurton,  J.,  in  giving  the 
opinion  of  the  Court,  goes  into  the  whole  matter,  and  says 
that  under  the  provisions  of  the  Code  the  son's  interest 
could  not  be  reached  by  creditors,  and  that  even  apart  from 
statute  the  same  would  be  the  case.  He  says  that  the  de- 
cisions in  Turley  v.  Massengill  and  Hooberrtj  v.  Harding 
"  have  excited  such  surprise  and  disapproval  with  the  pro- 
fession that  we  are  called  upon  in  this  case  to  reconsider 
the  ground  upon  which  they  rest."  (p.  102.)  The  learned 
judge  supports  what  "  may  well  be  termed  the  American 
rule  "  as  to  the  validity  of  spendthrift  trusts  by  the  analogy 
of  "  our  exemption  laws."  "  Under  such  laws  large  masses 
of  property  are,  in  pursuance  of  a  public  policy,  finding  ex- 
pression in  legislation,  exempt  from  liability  for  debts," 
(p.  104,)  and  concludes  that  Turley  v.  Massengill  and 
Hooberry  v.  Harding  must  be  considered  as  overruled.] 

§  240  x.  [Henson  v.  Wright,  88  Tenn.  501.  Land  was 
conveyed  to  A.  in  trust,  to  hold  to  the  only  proper  use  and 
benefit  of  B.,  for  B.'s  benefit  only,  and  to  account  to  him 
for  the  rents  during  his  life,  and  on  B.'s  death  to  convey  it 
over.  It  was  held  that  A.  and  B.  could  together  convey  a 
good  estate  in  the  land  for  B.'s  life.  Porter  v.  Lee,  88 
Tenn.  782.  Land  was  devised  to  a  trustee  in  trust  to  lease, 
collect  the  rents,  pay  expenses,  and  pay  over  the  net  rents 
to  the  testator's  children,  on  the  death  of  either  child  its 


22S  RESTRAINTS  ON   ALIENATION. 

children  to  take  its  share  of  the  rents.  This  certainly  was 
not  a  spendthrift  trust,  but  it  was  held  that  the  provisions 
of  the  Code,  ubi  supra,  prevented  the  equitable  life  estate 
of  a  child  being  readied  by  a  bill  in  equity  brought  by  a 
judgment  creditor.  In  Tennessee,  therefore,  it  has  been 
held  that  a  creditor  is  prevented  by  statute  from  reaching 
any  equitable  interest  (not  created  by  the  cestui  que  /rust) 
whether  of  a  spendthrift  character  or  not.  That  the  cestui 
que  trust  cannot  voluntarily  alienate  his  interest,  whether 
it  be  for  life  or  in  fee,  has  never  yet  been  decided  in  Ten- 
nessee. See  Potter  v.  Couch,  141  U.  S.  290,  §  124  r, 
ante.~\ 

§  2  Id  y.  [Delaware.— In  Gray  v.  Corbit,  4  Del.  Ch.  135, 
land  was  devised  on  trust  that  the  trustees  should  "  pay, 
apply,  and  dispose"  of  the  rents,  "as  the  same  shall  from 
time  to  time  be  received,  to  the  comfortable  and  respect- 
able maintenance  and  support  of  my  son  Richard  Thomas, 
during  his  natural  life,  at  such  place  and  in  such  man- 
ner" as  the  said  trustees  might  in  their  discretion  think 
proper,  and  on  his  death  to  convey  the  same  to  his  chil- 
dren. Richard  was  an  imbecile.  At  his  death  part  of  the 
rents  were  in  the  hands  of  the  trustees  unexpended;  the 
Court  held  that  they  did  not  belong  to  Richard's  admin- 
istrator. In  the  course  of  the  opinion,  the  Court,  speaking 
of  cases  on  rights  passing  to  an  assignee  in  bankruptcy, 
say  :  "The  principle  of  those  cases  is  this:  that  a  trust  tor 
the  general  benefit  of  a  person  who  is  sui  juris,  a  trust 
which  is  not  in  terms  limited  to  the  purpose  of  mere 
maintenance,  and  which  therefore  may  be  so  used  as  to 
afford  the  substantial  advantage  of  ownership  and  at  the 
same  time  be  a  cover  against  liability  for  debts,  shall  be 
held  to  vest  an  interest  assignable  under  the  bankrupt 


RESTRAINTS   ON   ALIENATION.  229 

law.  The  express  exclusion  of  creditors  found  in  sonic  of 
this  class  of  eases  only  renders  them  more  directly  obnox- 
ious to  the  policy  of  the  law  :  nor  does  the  latitude  of  dis- 
cretion sometimes  given  to  trustees  to  withhold  the  fund 
save  such  a  case ;  for  the  material  question,  under  the 
statute,  is  not  whether  the  trustees  may  use  the  fund  only 
for  maintenance,  but  whether  they  are  at  liberty  to  go  be- 
yond maintenance.  If  the  latter,  then,  as  the  trust  may 
be  used  as  a  cover  against  creditors,  it  is  within  the 
policy  which  treats  these  trusts  as  vesting  an  interest  as- 
signable in  bankruptcy.  The  only  mode  of  saving  from  the 
effect  of  bankruptcy  a  trust  for  the  general  benefit  of  the 
party,  is  by  limiting  it  to  continue  only  until  bankruptcy 
or  insolvency  and  to  determine  absolutely  in  such  an  event. 
.  .  .  The  result  of  these  decisions  is  that  a  trust  for  the 
general  benefit  of  a  person  sui  juris  which,  not  being  re- 
stricted to  maintenance  only,  may  be  so  used  as  to  confer 
the  substantial  advantages  of  ownership,  shall  be  deemed 
to  vest  a  transmissible  interest  so  as  to  protect  the  policy 
of  the  bankrupt  laws.  But  that  policy  has  not  been  ex- 
tended by  any  decision,  even  under  the  bankrupt  laws,  to 
a  provision  restricted  to  the  maintenance  and  support  of 
an  imbecile  person,  incapable  of  managing  his  affairs  to 
such  an  extent  as  to  contract  liabilities  which  ought  to  be 
protected."  Delaware  has,  by  reason  of  these  remarks  of 
its  Supreme  Court,  been  here  included  among  those  States 
where  the  dicta,  if  not  the  decisions,  favor  spendthrift 
trusts,  but  it  is  obvious  that  such  trusts  are  approved 
by  that  Court  only  when  of  a  very  peculiar  character. 
When  a  trustee  can  spend  the  income  of  a  trust  fund 
for  the  support  and  maintenance  of  A.,  and  cannot  give 
A.  anything  more  than  is  needed  for  his  support,  then  the 


230  RESTRAINTS  ON   ALIENATION. 

Delaware  Court  would  not  allow  the  amount  needed 
for  the  support  of  A.  to  be  reached  by  A.'s  creditors ;  but 
the  theory  on  which  Broad/way  Bank  v.  Adams,  133  Mass. 
170,  goes,  that  you  can  save  an  equitable  life  interest 
from  creditors  by  simply  saying  that  they  cannot  touch 
it,  would  be  unequivocally  condemned  in  Delaware] 

§  240  2.  [Indiana.  —  In  Martin  v.  Davis,  32  Ind.  38, 
the  validity  of  spendthrift  trusts  was  a  question  raised, 
but  not  decided.  In  Thompson  v.  Murphy,  3/  N.  E.  Rep. 
1094,  in  the  Appellate  Court,  (which,  in  spite  of  its  name, 
is  a  subordinate  court  in  Indiana,)  it  was  held  that  a  legal 
life  estate  could  not  be  devised  to  be  free  from  the  gran- 
tee's debts,  but  the  Court  say  that  they  think  the  testatrix 
by  a  trust  could  have  provided  "  the  means  for  the  sub- 
sistence of  her  son,  without  exposing  it  to  his  improvidence, 
and  free  from  levy  and  sale  by  his  creditors."] 

§  241.  In  Virginia,  the  question  of  the  inalienability  of 
a  cestui  que  trust's  interest  in  property  out  of  the  income 
of  which  he  is  to  be  supported  for  life  [did  not  come  up 
for  consideration  until  1891].  The  only  point  discussed 
had  been  whether  the  interests  of  several  cestuis  que  trust 
could  be  severed,  or  whether  they  were  so  conjoined  that 
no  part  of  the  trust  fund  could  be  reached  for  the  debts 
of  any  one  of  them.  See  §  1/6,  ante.  The  cases  are  as 
follows. 

§  241  a.  Scott  v.  Gibbon,  5  Munf.  86.  Scott  v.  Loraine, 
6  Munf.  117-  Roanes  v.  Archer,  4  Leigh,  550.  Property 
conveyed  by  a  man  to  the  trustees  of  his  marriage  settle- 
ment cannot  be  taken  on  execution  against  him.  See 
Butler  v.  MCann,  4  Leigh,  631. 

§  242.  Markham  v.  Guerrant,  4  Leigh,  279.  A.  con- 
veyed property  to  trustees  in  trust  to  pay  A.'s  debts,  and 


RESTRAINTS  ON   ALIENATION.  231 

for  the  support  and  maintenance  of  A.,  and  B.  his  wife, 
and  their  children  and  family,  during  the  joint  lives  of  A. 
and  B.  and  the  life  of  B.,  and  at  her  death  over ;  with 
authority  to  sell  the  principal,  at  the  trustees'  discretion, 
to  pay  the  debts  of  A.  due  at  the  making  of  the  deed.  A. 
after  making  the  deed  contracted  a  debt  to  C,  and  died. 
Held  that  C.  was  not  entitled,  as  against  the  widow  and 
children,  to  any  part  of  the  income  accruing  after  A.'s 
death. 

§  243.  Doswell  v.  Anderson,  1  Pat.  &  H.  185.  A 
woman  conveyed  property  to  trustees  for  the  sole  and 
separate  use  of  herself  during  her  life,  "  the  profits  to  be 
applied  to  her  sole  and  separate  use,  and  the  support, 
maintenance,  and  education  "  of  her  children,  and  on  her 
death  to  her  children.  After  this  conveyance  she  con- 
tracted debts.  The  creditors  filed  a  bill  for  the  payment 
of  these  debts  out  of  the  principal.  The  Circuit  Court 
ordered  the  principal  sold  to  pay  these  debts.  But  the 
Special  Court  of  Appeal  reversed  the  decree. 

§  244.  Perkins  v.  Dickinson,  3  Grat.  335.  A  woman 
made  a  deed  giving  her  property,  on  her  marriage,  to  trus- 
tees, upon  trust  that  her  husband  should,  during  the  joint 
lives  of  himself  and  her,  enjoy  the  profits,  but  that  they 
should  not  be  liable  for  his  debts.  It  was  held  that  it 
was  intended  that  the  husband  and  wife  should  enjoy  the 
profits  jointly,  and  that  he  had  no  separate  share  which 
could  be  got  at  by  his  creditors.  To  derive  this  intent 
from  the  facts  in  the  case  may  be  a  strained  construction, 
but  it  is  on  this  supposed  intent  that  the  decree  went. 

§  245.  Nickell  v.  Handly,  10  Grat.  336.  Devise  to 
trustees  in  trust  to  use  the  property  so  as  to  be  most  ad- 
vantageous to  the  interests  and  support  of  H.  and  her 


232  RESTRAINTS  <>N'   ALIENATION. 

children  during  the  life  of  II..  and  on  her  death  to  her 
children.  Held  (  Moncure,  -)..  dissenting)  that  II.  had  no 
separate  interest  which  could  be  reached  for  her  debts. 
But  it  was  said  that,  if  there  was  a  surplus  after  provid- 
ing a  reasonable  support  for  the  family,  II.  and  her  chil- 
dren would  share  it  equally,  and  II.  s  share  would  be 
liable  for  her  debts  (p.  342).  [Cf.  Tolland  County  Ins. 
Co.  v.  Underwood,  50  Conn.  493,  §  199,  b,  ante;  Leigh  v. 
Earrison,  69  Miss.  !>:>:'>,  §  240  m.] 

§246.  -Johnston  v.Zane,U  ('•vat.  552.  Z.  conveyed 
property  to  trustees  to  pay  his  debts,  to  buy  a  house  for  Z. 
and  his  wife,  to  be  occupied  by  them  and  the  survivor, 
and  to  invest  the  rest  of  the  property  and  apply  the  pro- 
ceeds to  the  support  of  Z.  and  his  wife  and  the  survivor. 
Remainder  over  on  the  death  of  the  survivor.  Z.'s  debts 
were  paid,  a  house  was  bought,  and  Z.  died.  Held  that 
debts  of  Z.  contracted  after  the  conveyance  were  not  to 
be  satisfied  out  of  the  income,  as  against  the  widow  and 
children.  It  is  said  (pp.  5G9,  570)  that,  had  Z.  been  alive, 
he  had  no  interest  which  could  be  reached  by  his  credi- 
tors;  and  though  this  is  obiter  dictum,  yet  it  agrees  with 
the  two  preceding  cases,  which  establish  (in  accordance 
with  some  other  authorities,  see  ij  176,  ante)  that,  when 
property  is  given  to  trustees  for  several  persons,  who  are 
to  enjoy  it  together,  or  at  the  discretion  of  the  trustees, 
no  one  of  the  cestuis  que  trust  has  an  interest  which  can 
be  attached. 

j;  247.  Nixon  v.  Rose,  12  Grat.  425,  merely  estab- 
lishes that  a  married  woman  may  be  restrained  from 
anticipation. 

§248.  Armstrong  v.  Pitts,  13  Grat.  2:55.  Devise  of 
land  and  slaves  to  trustees,  for  the  use  and  benefit  of  A. 


RESTRAINTS  ON  ALIENATION.  233 

for  life,  he  to  have  the  privilege  of  living  on  the  land,  and 
having  the  use  of  the  slaves,  so  far  as  might  be  necessary 
for  his  support  and  maintenance,  and  the  support  and 
maintenance  of  his  family ;  at  his  death,  over.  The  prop- 
erty not  to  be  liable  for  any  debt  of  A.  Held  that  a  credi- 
tor of  A.  could  not  proceed  against  this  trust  fund  without 
getting  judgment.  See  §  1/0,  ante.  Whether  judgment 
creditors  could  have  any  remedy  is  expressly  left  unde- 
cided (p.  243). 

§  249.  The  question,  therefore,  how  far  a  creditor  can 
reach  property  which  has  been  placed  in  trust  for  his 
debtor,  with  a  declaration  that  it  shall  not  be  liable  for 
his  debts,  had  not,  [when  the  first  edition  was  published,] 
been  answered  by  any  decision  of  the  Virginia  courts.  See 
Coutts  v.  Walker,  2  Leigh,  268.  Cochran  v.  Paris,  11 
Grat.  348.     Lewis  v.  Henry,  28  Grat.  192. 

§  249  a.  [Camp  v.  Chary,  76  Va.  140.  Here  it  was 
held  that  a  clause  of  forfeiture  upon  an  attempt  to  alien 
a  life  estate  was  good.  The  Court  declined  to  consider 
the  question  whether  a  restraint  upon  alienation  could  be 
annexed  to  a  life  estate.] 

§  249  b.  [In  Garland  v.  Garland,  87  Va.  758,  a  tes- 
tator set  apart  real  and  personal  property  in  trust  in  the 
hands  of  his  executor,  for  the  benefit  of  his  brother. 
"  The  profits  of  the  estate  is  [sic]  set  apart  for  his  use  un- 
der his  superintendence,  but  neither  the  estate  or  profits 
shall  be  bound  for  his  past  debts,  or  for  future  debts  or 
liabilities  other  than  decent  and  comfortable  support."  At 
his  death  all  the  property  in  this  clause  is  to  pass  to  C. 
At  the  death  of  the  brother  there  were  profits  of  the  trust 
property  in  the  hands  of  the  trustee.  The  Court  held 
that  these  did  not   pass  to  the  brother's  administrator. 


234  RESTRAINTS  ON   ALIENATION. 

The  Court  refers  to  Nichols  v.  Eaton,  91  U.  S.  716,  §§  251 
etseqq.,  post,  and  Broadway  Bank  v.  Adams,  133  Mass. 
170.  ^  iMn  6,  ante,  and  says,  "  the  reasoning  of  these  cases 
commends  itself  to   our  judgment,  and  fully   establishes 
the  validity  of  this  trust "  (p.  70.'}) ;  hut  as  the  Court  say 
shortly  before,  this  seems  to  be  beside  the  mark.      All 
that  Garland  v.  Garland  decides,  be  it  rightly  or  wrongly, 
is  that  the  testator's  brother  had  no  right  to  any  more 
of  the  profits  than  was  needed  for  his  decent  and  com- 
fortable support,  while  Broadway  Bank  v.  Adams  decides, 
and  Miller,  J.,  in  Nichols  v.  Eaton  says,  that  the  profits  to 
which  a  cestui  que  trust  has  a  right  cannot  be  alienated  by 
him  or  taken  by  his  creditors.     The  validity  or  invalidity 
of  spendthrift  trusts,  therefore,  notwithstanding  the  many 
cases  which  have  grazed  the  subject,  has  never  been  au- 
thoritatively decided  in  Virginia.] 

§  250.  Federal  Courts.  —  It  is  now  necessary  to  con- 
sider how  the  question  has  been  treated  in  the  courts  of 
the  United  States.  —  Nichols  v.  Levy,  5  Wallace,  433. 
Land  in  Tennessee  was  conveyed  to  a  trustee  to  allow 
the  cestuis  que  trust  to  use  the  property,  but  so  that  it 
should  not  be  liable  for  their  debts.  A  judgment  creditor 
of  the  cestuis  que  trust  brought  a  bill  in  equity  to  reach 
their  interest.  The  Court  held  that  the  statutes  of  Ten- 
nessee prevented  this  being  done.  [See  §§  240  £-240  x, 
ante.']  But  they  said :  "  If  the  determination  of  this  case 
depended  upon  the  general  principles  of  jurisprudence,  the 
result  must  necessarily  be  in  favor  of  the  appellees.  It  is 
a  settled  rule  of  law,  that  the  beneficial  interest  of  the 
cestui  que  trust,  whatever  it  may  be,  is  liable  for  the  pay- 
ment of  his  debts.  It  cannot  be  so  fenced  about  by  inhi- 
bitions and  restrictions  as  to  secure  to  it  the  inconsistent 


RESTRAINTS  ON   ALIENATION.  235 

characteristics  of  right  and  enjoyment  to  the  beneficiary 
and  immunity  from  his  creditors.  A  condition  precedent 
that  the  provision  shall  not  vest  until  his  debts  are  paid, 
and  a  condition  subsequent  that  it  shall  be  divested  and 
forfeited  by  his  insolvency,  with  a  limitation  over  to  an- 
other person,  are  valid,  and  the  law  will  give  them  full 
effect.  Beyond  this,  protection  from  the  claims  of  credi- 
tors is  not  allowed  to  go."  (p.  441.) 

§  250  a.  In  Sanford  v.  Lackland,  2  Dill.  6,  10,  Dillon, 
J.,  says  that  a  testator  "  cannot  give  the  beneficial  interest, 
and  annex  to  it  the  inconsistent  condition  that  it  shall  not 
be  liable  for  the  debts  of  the  devisee." 

§  251.  Nichols  v.  Eaton,  3  Cliff.  595,  s.  c.  91  U.  S.  716. 
Property  was  devised  to  trustees,  in  trust  to  pay  the  in- 
come to  the  children  of  the  testatrix  in  equal  shares,  on  the 
death  of  each  child  its  share  to  go  over.  If  her  sons  re- 
spectively should  alienate  or  dispose  of  the  income,  or  if, 
by  reason  of  bankruptcy  or  insolvency,  or  any  other  means 
whatsoever,  said  income  could  no  longer  be  personally  en- 
joyed by  them  respectively,  but  the  same  would  become 
vested  in  or  payable  to  some  other  person,  then  the  trust 
expressed  in  said  will  concerning  so  much  thereof  as  would 
so  vest  should  immediately  cease  and  determine.  In  that 
case,  during  the  residue  of  the  life  of  such  son,  that  part 
of  the  income  was  to  be  paid  to  the  wife  and  children,  or 
wife  or  child,  as  the  case  might  be,  of  such  son,  and,  in 
default  of  wife  or  children,  then  to  be  added  to  the  prin- 
cipal ;  and  further,  "  in  case,  after  the  cessation  of  said 
income  as  to  my  said  sons  respectively,  otherwise  than  by 
death,  as  hereinbefore  provided  for,  it  shall  be  lawful  for 
my  said  trustees,  in  their  discretion,  but  without  its  being 
obligatory  upon  them,  to  pay  to  or  apply  for  the  use  of  my 


236  RESTRAINTS  ON    ALIENATION. 

said  sons  respectively,  or  for  the  use  of  such  of  my  said 
sons  and  his  wife  and  family,  so  much  and  such  part  of  the 
income  to  which  my  said  sons  respectively  would  have  been 
entitled  under  the  preceding  trusts  in  case  the  forfeiture 
hereinbefore  provided  for  had  not  happened."  One  of  the 
sons  became  bankrupt,  and  his  assignee  in  bankruptcy 
brought  a  bill  against  the  trustees  to  have  the  income  of 
the  son's  share  applied  for  the  benefit  of  the  creditors. 
The  case  was  fully  argued.1 

§  252.  The  opinion  of  the  Court  was  delivered  by  Mr. 
Justice  .Miller.  He  begins  by  saying  that  "the  claim  of 
tin'  assignee  is  founded  on  the  proposition  that  a  will 
which  expresses  a  purpose  to  vest  in  a  devisee  either  per- 
sonal property  or  the  income  of  personal  or  real  property, 
and  secure  to  him  its  enjoyment  free  from  liability  for  his 
debts,  is  void,  on  grounds  of  public  policy,  as  being  in  fraud 
of  the  rights  of  creditors ;  or,  as  expressed  by  Lord  Eldon 
in  Brandon  v.  Robinson,  1»  Yes.  A\Y.\, '  If  property  is  given 
to  a  man  for  his  life,  the  donor  cannot  take  away  the  inci- 
dents of  a  life  estate.'  There  are  two  propositions  to  be 
considered  as  arising  on  the  face  of  this  will  as  applicable 
to  the  facts  stated:  1.  Does  the  true  construction  of  the 
will  bring  it  within  that  class  of  cases,  the  provisions  of 
which  on  this  point  are  void  under  the  principle  above 
stated  ?  and  2.  If  so,  is  that  principle  to  be  the  guide  of  a 
court  of  the  United  States  sitting  in  chancery  ?  " 

§  253.  The  learned  judge  devotes  himself  to  the  consid- 
eration of  the  first  proposition,  and,  after  discussing  the 
cases,  he  sums  up  by  saying  (p.  724)  that  the  English  de- 
cisions "  are  all  founded  on  the  proposition,  that  there  is 
somewhere  in  the  instrument  which  creates  the  trust  a  sub- 
1  [See  §  2C5  a,  note,  ])ost.] 


RESTRAINTS   OX   ALIENATION.  237 

stantial  right,  a  riglit  which  the  appropriate  court  would 
enforce,  left  in  the  bankrupt  after  his  insolvency,  and  after 
the  cesser  of  the  original  and  more  absolute  interest  con- 
ferred by  the  earlier  clauses  of  the  will.  This  constitutes 
the  dividing  line  in  the  cases  which  are  apparently  in  con- 
flict. Applying  this  test  to  the  will  before  us,  it  falls 
short,  in  our  opinion,  of  conferring  any  such  right  on  the 
bankrupt." 

§  254.  A  clearer  statement  of  the  test  to  be  applied  in 
these  cases  is  not  to  be  found  in  the  books,  and,  as  the 
learned  judge  says,  it  was  conclusive  against  any  rights  of 
the  bankrupt's  assignee  in  the  case  before  the  court.  But, 
notwithstanding,  the  learned  judge  goes  on  to  consider 
what  the  decision  would  have  been  had  the  facts  been  other 
than  they  were ;  viz.  if  the  bankrupt  cestui  que  trust  had 
had  the  sole  equitable  right  in  the  property.  To  the  ques- 
tion raised  by  this  hypothetical  state  of  facts  the  greater 
part  of  the  opinion  is  directed  ;  and  of  it  the  learned  judge 
says  (p.  729) :  "  We  have  indicated  our  views  in  this  mat- 
ter rather  to  forestall  the  inference  that  we  recognize  the 
doctrine  relied  on  by  appellants,  and  not  much  controverted 
by  opposing  counsel,1  than  because  we  have  felt  it  neces- 
sary to  decide  it."  The  expression  of  opinion,  then,  in 
Nichols  v.  Eaton,  by  Mr.  Justice  Miller,  which  is  the  chief 
reliance  of  the  supporters  of  spendthrift  trusts,  was  dis- 
tinctly recognized  by  the  learned  judge  himself  as  entirely 
unnecessary  to  the  decision  of  the  case.  [He  said  also : 
"  Nor  has  the  time  which  the  pressure  of  business  in  this 
Court  authorizes  us  to  devote  to  this  case  permitted  any 

1  The  report  of  the  arguments  shows  that  this  statement  is  quite  cor- 
rect. The  eminent  counsel  on  both  sides  evidently  considered  the  law  as 
laid  down  in  Brandon  v.  Robinson  to  be  unquestionable. 


238  RESTRAINTS  ON  ALIENATION. 

further  examination  into  the  decisions  of  the  State  courts  ;" 
in  other  words,  it  was  not  only  a  dirt  urn,  but  confessedly 
an  ill-considered  dictum.']  It  was  in  flat  contradiction  to 
the  law  of  the  State  in  which  the  will  was  made,  and  where 
all  the  i .arties  to  the  suit  lived,  (Tillinghast  v.  Bradford, 
5  R.  I.  "JO."),  §  179,  ante,)  as  well  as  to  that  of  England 
and  of  the  great  majority  of  those  States  in  which  the 
question  had  arisen ;  and  it  was  given  on  a  point  not  dis- 
cussed by  counsel,  and  not  discussed  because  the  counsel 
in  whose  favor  the  proposition  maintained  by  the  learned 
judge  went  thought  it  too  untenable  for  serious  argument. 
The  manner,  therefore,  in  which  this  startling  novelty  was 
produced  does  not  increase  the  weight  to  be  given  it.1 

1  That  a  judge  should  not  occasionally  let  fall  a  remark  not  strictly 
necessary  to  the  decision  of  a  case  is  neither  possible  nor  desirable  ;  but 
of  elaborate  statements,  confessedly  uncalled  for  to  determine  a  cause, 
and  confessedly  made  to  forestall  opinion  on  a  matter  not  in  judgment, 
there  have  been,  it  is  believed,  before  Nichols  v.  Eaton,  and  since  Marbury 
v.  Madison,  1  Oranch,  137  (1803),  but  two  cases  in  the  history  of  the  Su- 
preme Court.     They  are  worth  noting. 

From  1842  to  1844  a  controversy  had  been  going  on  between  the  Su- 
perior Court  of  New  Hampshire  and  Judge  Story,  sitting  as  Circuit  Judge 
in  the  First  Circuit.  The  latter  claimed,  and  the  former  denied,  the  right 
of  the  courts  of  bankruptcy  to  enjoin  proceedings  in  the  State  courts,  and 
to  direct  the  sheriff  to  deliver  property  attached  in  a  State  court  to  as- 
signees in  bankruptcy.  Ex  parte  Foster,  2  Story,  131.  In  re  Cook,  Id. 
37G.  Kittredge  v.  Warren,  14  N.  H.  509.  In  re  Bellows,  3  Story,  428. 
Everett  v.  Stone,  Id.  446.  Kittredge  v.  Emerson,  15  N.  H.  227.  In  1844 
the  Supreme  Court  of  the  United  States  was  moved  to  issue  a  writ  of  pro- 
hibition to  a  District  Court  sitting  in  bankruptcy.  The  Court  was  unani- 
mous against  the  right  to  issue  the  writ;  but  Judge  Story,  who  delivered  the 
opinion,  embraced  the  opportunity  to  reaffirm  the  opinions  on  the  power 
of  the  bankruptcy  courts  which  he  had  maintained  on  circuit.  Ex  parte 
Christy,  3  How.  292.  Mr.  Justice  Catron  protested.  That  the  Supreme 
Court,  he  said,  has  no  jurisdiction  "  to  revise  the  proceedings  of  a  bankrupt 
court,  is  our  unanimous  opinion.  So  far  we  adjudge;  and  in  this  I  concur. 
But  a  majority  of  my  brethren  see  proper  to  go  further,  and  express  their 
views  at  large  on  the  jurisdiction  of  the  bankrupt  court.     In  this  course  I 


RESTRAINTS   ON   ALIENATION.  239 

§  255.  The  dicta  in  Nichols  v.  Eaton  are,  however,  un- 
questionably the  most  foreible  presentation  of  the  doctrine 
of  spendthrift  trusts,  —  more  so  than  any  that  can  be 
found  in  their  native  home  of  Pennsylvania ;  and  this 
seems,  therefore,  the  best  place  to  examine  the  arguments 
urged  in  its  support. 

§  256.  The  learned  judge  says  (p.  725) :  "  We  do  not 
see,  as  implied  in  the  remark  of  Lord  Eldon,  that  the 
power  of  alienation  is  a  necessary  incident  to  a  life  estate 
in  real  property,  or  that  the  rents  and  profits  of  real  prop- 
erty, and  the  interest  and  dividends  of  personal  property, 
may  not  be  enjoyed  by  an  individual  without  liability  for 
his  debts  being  attached  as  a  necessary  incident  to  such 
enjoyment.  This  doctrine  is  one  which  the  English  Chan- 
cery Court  has  ingrafted  upon  the  common  law  for  the 
benefit  of  creditors,  and  is  comparatively  of  modern  origin." 

cannot  concur  ;  perhaps  it  is  the  result  of  timidity,  growing  out  of  long- 
established  judicial  habits  in  courts  of  error  elsewhere,  never  to  hazard  an 
opinion  where  no  case  was  before  the  Court,  and  when  that  opinion  might 
be  justly  arraigned  as  extrajudicial  and  a  mere  dictum  by  courts  and  law- 
yers ;  be  partly  disregarded  while  I  was  living,  and  almost  certainly  be 
denounced  as  undue  assumption  when  I  was  no  more.  A  measure  of  dis- 
regard awarded  with  an  unsparing  hand,  here  and  elsewhere,  to  the  dicta 
of  State  judges  under  similar  circumstances  ;  and  it  is  due  to  the  occasion 
and  to  myself  to  say,  that  I  have  no  doubt  the  dicta  of  this  Court  will  only 
be  treated  with  becoming  respect  before  the  Court  itself,  so  long  as  some  of 
the  judges  who  concurred  in  them  are  present  on  the  bench,  and  afterwards 
be  openly  rejected  as  no  authority  —  as  they  are  not."  (p.  322. )  The  words 
were  prophetic.  The  next  year  Judge  Story  died.  The  Superior  Court  of 
New  Hampshire  entirely  disregarded  his  dicta  in  Ex  parte  Christy.  Peck  v. 
Jenness,  16  N.  H.  516.  The  case  was  carried  to  the  Supreme  Court  of  the 
United  States,  and  there,  in  1849,  the  decision  of  the  State  Court  was 
unanimously  confirmed.     Peck  v.  Jenness,  7  How.  612. 

The  other  instance  in  which  the  judges  of  the  Supreme  Court  in  deliv- 
ing  opinions  have  indulged  in  elaborate  dicta,  confessedly  uncalled  for,  is 
The  Bred  Scott  Case,  19  How.  393. 

The  result  of  the  cases  does  not  augur  well  for  the  practice. 


240  RESTRAINTS   ON    AI.1KXATIOX. 

If  this  means  that,  at  some  earlier  period,  trusts  of  this 
kind  were  treated  differently  from  what  they  are  at  pres- 
ent, the  statement  is  without  any  evidence  for  its  support. 
The  doctrine  is  modern  only  because  such  trusts  are  them- 
selves modern.  As  soon  as  such  trusts  appeared,  equity 
hastened  to  give  a  remedy;  and  the  remedy  was  simply  to 
apply  the  venerable  principle  of  law  and  equity  alike, — 
that  property  shall  be  alienable  and  liable  for  debts.  See 
§§  143-1  ID,  ante.  Instead  of  the  English  Chancery  in- 
grafting new  doctrines  on  the  common  law  in  this  matter, 
it  followed  the  common  law  closely  and  rigorously.  The 
common  law  held  that  legal  estates  of  freehold,  whether 
in  fee  simple  or  for  life,  should  not  be  inalienable  ;  and 
Chancery  held  the  same  of  equitable  estates  of  freehold. 
The  common  law  held  that  a  legal  life  estate  might  be 
made  determinable  on  alienation  ;  and  Chancery  held  the 
same  of  an  equitable  life  estate.  And,  if  Chancery  held 
that  a  married  woman's  separate  estate  might  be  made  in- 
alienable by  her,  it  only  followed  in  this  what  had  always 
been  the  doctrine  of  the  common  law.  [The  common  law 
took  from  a  married  woman  the  power  to  alienate  her 
property  and  to  charge  it  with  debts ;  and  so  did  equity. 
The  common  law  took  it  from  her  for  the  benefit  of  her 
husband,  equity  took  it  from  her  for  her  own  benefit. 
But  in  both  systems  the  conception  of  a  married  woman 
as  a  person  not  to  have  the  control  of  property  was  a  fa- 
miliar one.  Sec  §  269,  post.~]  The  idea  which  seems  to 
pervade  this  opinion,  as  well  as  Broadway  Bank  v.  Adams, 
133  Mass.  170,  §  240  b,  ante,  that  the  English  Chancery 
departed  from  the  true  rules  of  common  law  jurisprudence, 
to  which  these  cases  have  recurred,  is  a  singular  reversal 
of  the  facts.     The  English  Chancery  walked  scrupulously 


RESTRAINTS   ON  ALIENATION".  241 

in  the  ancient  ways  of  the  law  ;  and  it  is  these  late  cases 
which  have  departed  from  the  principles  of  the  common 
law.  as  much  as  they  have  from  the  precedents  in  equity. 

§  -2~>7.  The  Supreme  Court  of  Massachusetts,  in  Broad- 
way Bank  v.  Adams,  133  Mass.  1/0,  §  240  b,  ante,  dis- 
tinguishes legal  estates  from  equitable,  on  the  ground  that 
a  condition  not  to  alien  is  "  repugnant "  to  a  legal  estate. 
But  a  condition  not  to  alien  is  just  as  "  repugnant  "  to  an 
equitable  estate.  What  is  meant  by  repugnancy  ?  Not 
logical  inconsistency.  The  conception  of  a  condition 
against  alienation  attached  to  a  legal  fee  simple  or  life 
estate  presents  no  logical  difficulties.  If  the  legislature 
should  declare  such  conditions  valid,  the  courts  would 
have  no  trouble  in  upholding  them.  This  supposed  re- 
pugnancy or  incongruity  is  either  "  a  notion  which  savors 
of  metaphysical  refinement  rather  than  of  anything  sub- 
stantial,'' (per  Lord  Truro,  C,  in  Watkins  v.  Williams, 
3  Macn.  &  G.  622,  629,  §  58,  ante,')  or  it  means  "against 
public  policy."  [See  also  §§  74  6-/4/,  ante.]  A  restraint 
on  the  alienation  of  an  equitable  estate  is  as  much  against 
public  policy  as  is  a  restraint  on  the  alienation  of  a  legal 
estate.  Certainly  no  one  has  ever  shown  a  distinction. 
And  again,  if  equitable  estates  are  to  be  distinguished 
from  legal  estates,  why  confine  the  difference  to  equitable 
life  estates  ?  Yet  the  idea  that  an  equitable  fee  simple 
can  be  enjoyed  free  from  liability  for  debts  is  indignantly 
scouted  even  in  Pennsylvania.  Keysers  Appeal,  57  Pa. 
236,  §  115,  ante.1  And  see  §§  105  et  seqq.,  ante.  In  short, 
the  doctrine  that  an  equitable  life  estate  may  be  created 
inalienable  and  free  from  liability  for  debts,  if  it  be  law,  is 

1  [In  the  light  of  recent  decisions,  this  is  too  strongly  put.  §§  124  a- 
124  k,  ante.] 

16 


242  RESTRAINTS  ON  ALIENATION. 

an  anomaly  without  support  from  analogy,  either  at  com- 
mon law  or  in  equity. 

§  -2')V,.  And  this  leads  to  the  consideration  of  a  fallacy 
which,  it  is  conceived,  has  justified  to  the  courts  in  these 
late  cases,  if  it  has  not  produced,  the  notion  that  equitable 
life  interests  may  be  made  inalienable,  and  not  to  be 
reached  by  creditors.  That  fallacy  is,  that  the  only  ob- 
jection  to  such  inalienable  life  estates  is  that  they  defraud 
the  creditors  of  the  life  tenant ;  and  the  courts  labor,  with 
more  or  less  success,  to  show  that  these  creditors  are  not 
defrauded.1  Thus  Miller,  J.,  in  this  case  of  Nichols  v. 
Enton  (p.  725),  says,  "  If  the  doctrine  [of  non-inalienabil- 
ity of  equitable  life  interests]  is  to  be  sustained  at  all,  it 
must  rest  exclusively  on  the  rights  of  creditors."  So,  in 
Broadway  Bank  v.  Adams,  133  Mass.  1/0,  §  240  6,  ante, 
the  Court  say,  "  The  only  ground  upon  which  it  [the  clause 
against  alienation]  can  be  held  to  be  against  public  policy 
is  that  it  defrauds  the  creditors  of  the  beneficiary."  But, 
with  submission,  this  is  not  the  ground  why  equitable  life 
estates  cannot  be  made  inalienable  and  free  from  debts. 
The  true  ground  is  that  on  which  the  whole  law  of  prop- 
erty, legal  and  equitable,  is  based  ;  —  that  inalienable  rights 
of  property  are  opposed  to  the  fundamental  principles  of 
the  common  law ;  that  it  is  against  public  policy  that  a 
man  "  should  have  an  estate  to  live  on,  but  not  an  estate 

1  Tn  Nichols  v.  Eaton,  91  TJ.  S.  716,  726,  and  Broadway  Bank  v.  Adams, 
133  Mass.  170,  it  is  said  that  by  means  of  the  public  records  creditors  can 
learn  the  existence  of  these  trusts.  But  (1.)  Deeds  settling  personal  prop- 
erty,  e.  g.,  marriage  settlements,  are  not  recorded.  (2.)  In  what  registry 
is  a  creditor  to  look  to  see  whether  there  is  a  will  creating  a  spendthrift 
trust  in  favor  of  his  debtor  ?  That  a  debtor  lives  in  a  certain  county  is  no 
reason  why  a  trust  may  not  be  created  for  him  by  a  will  recorded  in  some 
other  county  or  State. 


RESTRAINTS   ON   ALIENATION.  243 

to  pay  his  debts  with,"  Tillinghast  v.  Bradford,  5  R.  I. 
205,  212,  §  1/9,  ante,  and  should  have  the  benefits  of 
wealth  without  the  responsibilities.  The  common  law  has 
recognized  certain  classes  of  persons  who  may  be  kept  in 
pupilage,  viz.  infants,  lunatics,  married  women ;  but  it 
has  held  that  sane  grown  men  must  look  out  for  them- 
selves,—  that  it  is  not  the  function  of  the  law  to  join  in 
the  futile  effort  to  save  the  foolish  and  the  vicious  from 
the  consequences  of  their  own  vice  and  folly.  It  is  whole- 
some doctrine,  fit  to  produce  a  manly  race,  based  on  sound 
morality  and  wise  philosophy. 

§  259.  The  argument,  therefore,  that  the  property  de- 
vised or  settled  belonged  to  the  testator  or  settlor,  and  that 
he  could  do  as  he  would  with  his  own,  is  entirely  beside 
the  point.  He  could  not  devise  or  settle  it  for  an  unlawful 
purpose,  such  as  a  gift  for  a  public  or  private  nuisance,  or 
a  gift  in  violation  of  the  Rule  against  Perpetuities.  A.  can- 
not devise  a  legal  life  estate  with  a  provision  that  it  shall 
not  be  subject  to  the  devisee's  debts.  Why  not  ?  Cujiis 
est  dare,  ejus  est  disponere.  The  debts  are  not  the  debts 
of  the  testator.  A.  cannot  devise  an  equitable  fee  simple 
with  a  provision  that  it  shall  not  be  subject  to  the  devisee's 
debts.  Why  not  ?  Cujus  est  dare,  ejus  est  disponere.  The 
debts  are  not  the  debts  of  the  testator.  Yet  it  is  not  dis- 
puted that  these  devises  are  bad ;  but  they  are  bad  for  no 
other  reason  than  that  for  which  a  devise  of  an  equitable 
life  estate  with  a  provision  that  it  shall  not  be  subject  to 
the  devisee's  debts  is  bad,  namely,  that  such  a  provision  is 
against  public  policy  and  illegal,  just  as  an  executory  de- 
vise to  take  effect  fifty  years  hence  is  against  public  policy 
and  illegal.  A  testator  may  give  such  rights  of  property  as 
he  pleases,  provided  they  are  rights  which  the  law  sane- 


244  RESTRAINTS   ON   ALIENATION. 

tions  :  but  Inalienable  rights  of  property  the  law  has  never 
sanctioned,  for  they  are  inconsistent  with  that  ready  trans- 
fer of  property  which  is  essential  to  the  well-being  of  a  civ- 
ilized community,  and  especially  of  a  commercial  republic.1 
§  260.  There  is  one  argument  in  favor  of  spendthrift 
trusts,  which,  though  but  little  relied  on  in  the  cases,  seems 
to  have  more  substance  than  any  other.  It  must  be  con- 
ceded that,  if*  a  trustee  has  a  discretion  to  pay  the  income 
of  the  trust  fund  to  one  or  more  of  several  persons  at 
his  option,  exclusive  of  the  others,  the  income  cannot  be 
readied  by  the  creditors  of  any  one  of  the  cestuis  que  trust ; 
for  no  one  of  them  has  any  rights.  The  trustee  may  choose 
to  give  all  the  income  to  another  of  the  number;  and  one 
man's  property  cannot  be  taken  for  another  man's  debts. 
In  this  way,  it  may  be  said,  the  rule  that  a  man's  interest 
shall  be  liable  for  his  debts  can  be,  and  in  practice  often 
is,  evaded  by  giving  property  to  trustees,  in  trust  to  pay 
the  income  to  A.,  or  to  any  member  of  his  family,  at  the 
trustee's  option,  or  to  accumulate  it  for  the  remainderman, 
the  testator  intending  that  the  trustee  should  give,  and  the 
trustee  in  fact  giving,  the  whole  income  to  A.,  and  yet  no 
creditor  of  A.  being  able  to  reach  it;  and  it  may  be  urged 
that  a  rule  of  law  which  can  be  so  readily  evaded  is  not 
worth  preserving,  and  in  fact  that  it  is  derogatory  to  the 
courts  to  announce  a  rule  of  law,  and  yet  at  the  same  time 

1  "It  contravenes  that  general  policy  which  forbids  restraints  on  alien- 
ation and  tlic  non-payment  of  honest  debts.  .  .  .  Property  tied  up  for 
half  a  century  contributes  nothing  to  the  general  wealth,  while  it  is  a 
great  stretch  of  liberality  to  the  ownership  of  it  to  suffer  it  to  remain  in 
this  anomalous  state  for  so  many  years  after  its  owner  has  left  it  behind 
him.  Clearly  it  i-  against  public  interest  that  the  property  of  an  after 
generation  shall  he  controlled  by  the  deed  [</".  dead]  of  a  former  period, 
or  that  the  non-payment  of  debts  should  be  encouraged."  Overman's 
Appeal,  88  Pa.  St.  276,  281,  §  234,  ante. 


RESTRAINTS  ON  ALIENATION.  245 

declare  themselves  unable  to  prevent  its  obvious  and  easy 
evasion. 

§  261.  But,  in  the  first  place,  the  evasion  is  not  so  easy. 
Many  a  testator  will  hesitate  about  giving  trustees  an  un- 
controlled  power  to  give  the  income  entirely  away  from 
the  only  person  he  desires  to  benefit ;  and,  if  the  trustees 
cannot  give  the  income  entirely  away  from  such  person, 
then  such  person  has  rights,  and  his  rights  his  creditors 
can  reach.  But,  again,  there  are  many  cases  where  an 
insolvent  man  enjoys  the  benefit  of  wealth  which  is  not 
liable  for  his  debts,  and  there  is  not  felt  to  be  any  scandal 
upon  public  justice.  A  rich  father  supports  an  insolvent 
son,  and  no  one  supposes  that  a  creditor  of  the  son  has  any- 
legal  claim  against  the  father.  One  may  think  that  the 
father  would  make  a  better  use  of  money  by  paying  the 
debts  of  the  son,  than  by  supporting  him  in  idleness ;  but 
no  one  has  ever  suggested  that  the  law  should  interfere. 
Yet,  if  the  money  used  for  the  support  of  the  son  was  paid 
to  him,  his  creditors  could  take  it.  Why  is  it  felt  to  be  no 
discredit  upon  courts  of  justice  that  they  are  foiled  by  this 
distinction  ?  Simply  because  the  son  has  no  rights  in  the 
matter.  The  court  may  feel  perfectly  sure  that  the  father 
will  use  the  property  for  the  benefit  of  the  son  ;  but  such 
use  is  voluntary.  And  if  the  son  has  no  legal  demand  on 
the  father,  the  creditors  of  the  son,  who  claim  under  him, 
can  have  no  demand  either.  Now  it  is  possible  for  the 
father  to  continue  this  state  of  things  by  substituting  some 
one  in  his  place,  by  deed  or  will,  who  may  continue  this 
same  voluntary  action ;  he  may  appoint  a  trustee  with  dis- 
cretion whether  to  support  the  son  or  not,  and  the  son's 
creditors  are  in  the  same  position  that  they  wTere  in  during 
the  father's  lifetime.     But  if  the  trustee  has  not  this  dis- 


246  RESTRAINTS   ON   ALIENATION". 

cretion,  then  the  son  has  rights,  and  therefore  his  creditors 
have  rights.  If  a  man  resolves  to  keep  a  child  after  his 
death  dependent  for  support  on  the  absolute  discretion  of 
an  individual,  he  can  do  it ;  he  is  not  bound  to  give  the 
child  any  rights,  and  law  and  morals  are  not  concerned  in 
the  question.  Hut  it  is  submitted  that  law  and  morals  are 
concerned  in  upholding  the  doctrine  that  a  man's  rights  of 
property  should  be  used  to  pay  his  debts.  To  say  whether 
a  man  has  rights  is  often  difficult,  but  there  is  and  ought 
to  be  no  difficulty  in  saying  that  his  rights,  whatever  they 
are,  are  alienable,  and  can  be  reached  by  his  creditors. 
See  §  167,  ante. 

§  261  a.  [But  the  true  answer  to  this  argument  is  indi- 
cated in  the  late  cases  of  Re  Coleman,  39  Ch.  Div.  443,  and 
Re  Neil,  62  L.  T.  N.S.  649,  §§  16/  6-167  e,  ante.  When 
a  trustee  has  a  discretion  to  apply  the  income  of  the  trust 
fund  to  the  support  of  A.  or  to  other  purposes,  the  assignees 
of  A.  cannot  compel  the  trustee  to  pay  them  anything,  for 
he  may  use  the  whole  income  in  other  ways;  but  what- 
ever the  trustee  actually  expends  for  A.'s  benefit,  for  that 
amount  he  is  accountable  to  the  assignees.  This  is  a  per- 
fect protection  against  evasion.] 

§  262.  The  most  singular  thing  in  the  opinion  in  Nichols 
v.  Eaton  is  the  theory  that  these  "spendthrift  trusts"  are 
something  American  (p.  725),  and  that  the  subjection  of 
equitable  life  interests  to  creditors  is  English  and  un- 
American.  Unless  the  payment  of  debts  be  considered 
un-American,  it  is  hard  to  see  the  Americanism  of  spend- 
thrift trusts.  That  grown  men  should  be  kept  all  their 
lives  in  pupilage,  that  men  not  paying  their  debts  should 
live  in  luxury  on  inherited  wealth,  are  doctrines  as  undem- 
ocratic as  can  well  be  conceived.     They  are  suited  to  the 


RESTRAINTS  ON  ALIENATION.  247 

times  in  which  the  Statute  De  Donis  was  enacted,  and  the 
law  was  administered  in  the  interest  of  rich  and  powerful 
families.  The  general  introduction  of  spendthrift  trusts 
would  be  to  form  a  privileged  class,  who  could  indulge  in 
every  speculation,  could  practise  every  fraud,  and  yet,  pro- 
vided they  kept  on  the  safe  side  of  the  criminal  law,  could 
roll  in  wealth.  They  would  be  an  aristocracy,  though 
certainly  the  most  contemptible  aristocracy  with  which  a 
country  was  ever  cursed. 

§  263.  The  American  character  of  these  trusts  is  de- 
duced by  the  learned  judge  in  Nichols  v.  Eaton  from  the 
analogy  of  the  statutes  exempting  property  from  execution 
which  prevail  in  most  of  the  States.  [And  see  §§  240  i, 
240  m,  240  w,  ante.']  But  the  analogy  is  fallacious.  The 
object  of  the  exemption  laws  is  to  save  poor  men  from 
being  pushed  to  the  wall.  They  are  to  be  supported  on 
the  theory  that  a  man  is  more  likely  to  be  a  useful  member 
of  society,  and  to  pay  his  debts,  if  he  is  not  deprived  of  his 
tools,  or  of  a  bare  subsistence.1  The  object  of  spendthrift 
trusts  is  to  enable  the  children  of  rich  men  to  live  in  debt 
and  in  luxury  at  the  same  time.  The  cestui  que  trust  of  a 
spendthrift  trust  is  not  likely  to  become  a  valuable  citizen. 

1  [It  must  be  admitted,  however,  that  in  some  of  the  United  States  laws 
exempting  property  from  execution  have  been  carried  to  an  extent  which 
it  would  not  be  easy  to  justify  on  any  sound  principles  of  ethics  or  political 
economy.  Thus  in  Nevada  (Gen.  Sts.  1885,  §  539)  a  homestead  to  the 
value  of  $5,000  is  exempt.  In  Texas  (Const,  of  1876,  Art.  16,  §  51),  a 
homestead  of  the  value  of  $5,000  when  first  selected  without  regard  to 
subsequent  improvements.  In  Arkansas  ( Dig.  of  Sts.  (1874),  §§  2623,  2625) 
a  homestead  to  the  value  of  $5,000,  and  personal  property  to  the  value  of 
$2,000.  In  Kansas  160  acres  in  the  country  or  an  acre  in  a  town,  as  a 
h-unestead,  without  limit  as  to  value  (Const,  of  1859,  Art.  15,  §  9),  and  a 
long  list  of  personal  property  (Gen.  Sts.  of  18S9,  §  2998),  when  belonging 
to  a  head  ol  a  family,  including  the  musical  instruments  used  by  the  family, 
all  the  clothes  of  the  family,  beds,  bedding,  stoves,  implements  of  indus- 


248  RESTRAINTS  ON   ALIENATION. 

§  263  a.  None  liavc  more  reason  to  regard  this  new 
doctrine  with  dislike  than  those  persons  who  have  accu- 
mulated or  inherited  property.  There  is  much  and  growing 
jealousy  of  wealth.  The  general  introduction  of  these 
spendthrift  trusts  would  greatly  arid  justly  inflame  it.  Some 
particularly  impudent  defiance  of  his  creditors  by  an  insol- 
vent millionnaire  would  attract  attention;  the  legislatures 
would  be  sure  to  interfere,  and  to  sweeping  and  clumsy 
statutes  would  pass  the  control  over  these  trusts,  which  the 
courts  of  equity  should  never  have  given  up. 

§  26  1.  The  divergence  of  opinion  on  the  subject  arises 
from  there  being  two  different  views  of  morality  and  policy. 
According  to  one  view,  morality  requires  that  a  man  should 
use,  and  the  publie  weal  requires  that  he  should  be  com- 
pelled to  use,  all  his  rights  of  property  to  pay  his  debts,  in 
preference  to  using  them  for  his  own  pleasure  or  profit. 
According  to  the  other  view,  it  is  consistent  with  morality 
for  a  man  to  take  and  enjoy,  and  consistent  with  the  public 
M'eal  to  allow  him  to  take  and  enjoy,  rights  of  property  for 
his  pleasure  and  profit,  and  to  leave  his  debts  unpaid,  pro- 
vided  the  person  giving  him  those  rights  has  declared  that 
they  shall  not  be  subject  to  debts. 

§  265.  If  the  former  doctrine  cannot  literally  be  said  to 
have  been  received,  semper,  ubique  et  <tb  omnibus,  the  ex- 
try,  ami  all  other  furniture  to  the  amount  of  $500  ;  two  cows,  ten  hogs, 
one  yoke  of  oxen,  a  horse  or  mule,  and  twenty  sheep  with  food  to  support 
such  animals  for  a  year,  wagons,  ploughs,  ami  other  farming  utensils  to  the 
amount  of  $300,  all  the  food  and  fuel  necessary  for  the  family  for  a  yen-, 
tools  of  a  trade,  and  also  stock  in  trade  not  exceeding  $400;  the  library  of 
any  professional  man.  A  community  educated  under  the  influence  of  such 
laws,  and  where  they  are  thought  calculated  "to  cherish  and  support  in 
the  bosoms  of  individuals,  those  feelings  of  sublime  independence  which 
are  so  essential  to  the  maintenance  of  free  institutions,"  (Franklin  v. 
Coffee,  18  Tex.  413,  416,)  is  ripe  for  the  introduction  of  spendthrift  trusts.] 


RESTRAINTS   ON"   ALIENATION.  249 

ceptions  were  insignificant  (sec  §  213,  ante)  until  the  courts 
of  Pennsylvania  gradually  slid  into  the  latter  doctrine  ;  and, 
however  much  some  of  the  judges  in  that  State  may  regret 
the  new  departure,  it  is  now  probably  too  late  for  them  to 
return  to  the  old  road.  §§  234,  235,  ante.  In  18G6  the 
Supreme  Court  of  the  United  States  expressed  its  approval 
of  the  former  view;  Nichols  v.  Levy,  5  Wallace,  433,  441, 
§  250,  ante;  but  in  1875  it  gave  its  adhesion  to  the  latter. 
Nichols  v.  Eaton,  91  U.  S.  716.  The  Supreme  Court  of 
Massachusetts  has  also  based  a  decision  on  the  latter  view. 
Broadway  Bank  v.  Adams,  133  Mass.  170,  §  240  6,  ante. 
It  has  been  a  main  object  of  these  pages  to  show  that  au- 
thority is  overwhelmingly  in  favor  of  the  former  view.1  It 
is  submitted  that  the  ethics  and  policy  of  the  latter  are 
not  so  clearly  preferable  as  to  require  a  departure  from  that 
authority. 

§  265  a.  In  support  of  his  view  in  Nichols  v.  Eaton, 
Judge  Miller  cites  the  Pennsylvania  cases,  Fisher  v.  Taylor, 
2  Rawle,  33,  §  220,  ante;  Holdship  v.  Patterson,  7  Watts, 
547,  §  221,  ante;  Ashhurst  v.  Given,  5  W.  &  S.  323,  §  223, 
ante;  Brown  v.  Williamson,  36  Pa.  338,  and  Still  v.  Spear, 
45  Pa.  168,  §  226,  ante;  Shankland's  Appeal,  47  Pa.  113, 
§  229,  ante;  also  Nickell  v.  Hanclly,  10  Grat.  336,  §  245, 
ante;  Pope  v.  Elliott,  8  B.  Monr.  56,  §  190/,  ante;  and 
Leavitt  v.  Beirne,  21  Conn.  1,  §  196,  ante;  and  he  refers, 
finally,  to  Campbell  v.  Foster,  35  N.  Y.  361,  §  289,  post. 
But  the  doctrine  of  Campbell  v.  Foster,  has  been  overruled 
in  New  York.  See  §  290,  post.  Nichols  v.  Eaton  is  well 
criticised  in  10  Am.  L.  Rev.  591  et  seqq.2 

1  [This  was  perfectly  true  when  written,  but  now,  as  has  been  shown, 
the  courts  of  several  States  have  followed  Mr.  Justice  Miller's  lead  in 
Nichols  v.  Eaton,  §§  240  h,  et  scqq.] 

2  [The  opinion  in  Nichols  v.  Eaton  says,  sub  fincm:  "Other  objections 


250  RESTRAINTS   ON   ALIENATION. 

§  265  h.  In  Hyde  v.  Woods,  94  U.  S.  523,  apropos  of 
the  validity  of  a  by-law  of  the  San  Francisco  Stock  Ex- 
change, that  the  proceeds  of  the  sale  of  a  delinquent  mem- 
ber's seat  should  be  first  applied  to  debts  due  the  board, 
Judge  Miller  states  his  continued  approval  of  Nichols  v. 
Eaton. 

§  2GG.  Durant  v.  Mass.  Hospital  Ins.  Co.,  2  Lowell,  ~)~o. 
A  trust  company  declared  that  they  would  hold  Si 0,000 
in  trust  to  pay  the  income  to  S.  for  life,  upon  his  separate 
receipt,  to  be  applied  to  the  support  of  S.  and  of  his  wife, 
and  the  education  and  support  of  their  children,  which  an- 
nuity and  principal  sum  were  both  declared  to  be  inalien- 
able by  S.,  and  not  subject  to  his  debts  or  control.  S. 
became  bankrupt.  His  assignees  brought  a  bill  against  the 
company,  asking  that  the  annuity  might  be  assigned  to 
them.  The  Court,  Lowell,  J.,  held  that  S.  had  a  full  dis- 
cretion how  to  dispose  of  the  income,  and  said,  if  he  became 
unfit,  that  a  new  trustee  could  be  appointed,  and  such  new 
trustee  would  have  a  full  discretion  in  the  appropriation  of 
the  income.     The  judge  continues :  "  If  this  is  not  so,  but 

have  been  urged  by  counsel.  ...  It  is  said  also,  that,  since  his  bank- 
ruptcy, the  defendant  Amasa  has  actually  received  $25,000  of  this  fund. 
.  .  .  What  may  have  come  to  him  after  his  bankruptcy  through  the  volun- 
tary action  of  the  trustees,  under  the  terms  of  the  discretion  reposed  in 
them,  is  his  lawfully,  and  cannot  now  be  subjected  to  the  control  of  his 
assignee."  My  learned  friend,  Gordon  Hughes,  Esq.,  has  had  the  kind- 
ness to  examine  for  me  the  transcript  of  the  record  and  the  briefs  of  coun- 
sel filed  in  the  clerk's  office  of  the  Supreme  Court.  From  his  examination 
it  appears  that  Amasa  received  §25,000,  but  that  it  was  before  the  assign- 
ment, not  after;  and  that  there  was  an  allegation  by  the  plaintiff  that  in- 
come had  been  paid  by  the  trustees  to  Amasa,  as  a  beneficiary,  since  the 
bankruptcy,  but  that  the  allegation  does  not  seem  to  have  been  supported 
by  the  proof.  So  the  only  point  decided  in  the  case  was  that  the  discretion 
of  the  trustees  whether  to  pay  to  Amasa  or  to  accumulate  could  not  be  inter- 
fered with,  and  the  remarks  of  Judge  Miller  on  spendthrift  trusts  were  in 
truth,  as  the  learned  judge  himself  treated  them,  obiter  dicta.] 


RESTRAINTS  OX  ALIENATION.  251 

the  bankrupt  is  entitled  to  some  part  of  this  income,  yet  I 
think  it  impossible  for  any  court  to  say  what  that  part  is ; 
for  the  reason  that  it  may  be  a  constantly  varying  quantity, 
and  that  it  would  be  both  impracticable  and  unjust  for  me 
to  undertake  to  decree  to  the  assignee  an  interest  for  the 
life  of  the  bankrupt  in  any  such  aliquot  part.  It  is  plain 
that,  if  I  cannot  do  that,  I  cannot  give  him  anything  which 
will  be  of  value  to  the  creditors.  No  doubt  this  amounts 
to  saying  that  the  bankrupt  will  have  some  benefit  from 
the  trust ;  but  this  is  the  actual  result  of  the  English  de- 
cisions concerning  discretionary  trusts,  which  is  approved 
and  followed  in  Nichols  v.  Eaton.  This  effect  is  pointed 
out  by  Mr.  Robson  in  his  work  on  Bankruptcy  (3d  ed.), 
396  ;  and  I  do  not  see  how  a  court  can  prevent  it.  The 
case  is  a  hard  one  for  the  creditors."  On  the  separable- 
ness  of  the  interests  of  cestuis  que  trust,  see  §§  1/2,  176, 
ante. 

§  267.  Spindle  v.  Shreve,  9  Biss.  199  ;  s.  c.  4  Fed.  Rep. 
136  (Circuit  Court  North.  Dist.  111.).  Devise  in  Kentucky 
of  land  in  Illinois  to  a  trustee  for  the  use  and  benefit  of  A. 
during  his  life,  and  then  to  descend  to  his  heirs,  without 
any  power  or  right  on  A.'s  part  to  encumber  the  estate,  or 
anticipate  the  rents,  the  trustee  to  pay  the  rents  to  A. 
quarterly.  Held,  that  A.'s  interest  did  not  pass  to  his  as- 
signees in  bankruptcy.  The  opinion  is  based  on  the  dicta 
in  Nichols  v.  Eaton,  and  carries  them  to  their  logical  con- 
clusion. Here  A.  was  entitled  to  the  rents,  the  trustee 
had  no  discretion  as  to  the  time  or  mode  of  payment,  and 
yet  A.  was  not  obliged  to  use  them  to  pay  his  debts.  That 
this  decision  is  the  logical  conclusion  of  the  dicta  in  Nich- 
ols v.  Eaton  is  perhaps  one  of  the  best  criticisms  that  can 
be  made  on  them.     This  case  had  no  parallel  at  the  time 


252  RESTRAINTS   OX  ALIENATION. 

of  its  decision  ;  but  the  Supreme  Court  of  Massachusetts 
lias  dow  gone  to  the  same  length  in  Broadway  Bank  v. 
Adams,  L33  Mass.  170,  §  210  b,  ante. 

§  207  a.  [The  decision  of  the  Circuit  Court  in  Spindle 
v.  Shreve  purported  to  go  upon  the  general  principles  of 
jurisprudence;  but  the  case  was  carried  by  appeal  to  the 
Supreme  Court  of  the  United  States,  and  from  the  opinion 
of  that  Court  (111  U.  S.  542)  it  appears  that  before  the 
assignment  in  bankruptcy  A.  had  transferred  all  his  assign- 
able interests  to  J.  The  Supreme  Court  affirmed  the  de- 
cree below,  and  dismissed  the  bill,  but  on  the  ground  that, 
if  the  interest  which  the  assignee  in  bankruptcy  sought  to 
reach  was  assignable,  it  had  been  already  assigned  to  J. 
The  Court  go  on  to  say,  that,  if  the  assignment  to  J.  had 
not  existed,  the  question  whether  the  interest  of  A.  passed 
to  the  assignee  in  bankruptcy  must  be  determined  by  the 
law  of  Illinois,  where  the  land  in  question  lay,  and  that  by 
the  statute  of  Illinois  property  held  in  trust  for  a  person 
could  not  be  reached  by  his  creditors,  if  the  trust  had  been 
created  by  some  one  other  than  himself.  111.  Rev.  Sts. 
c.  22,  §  49.  Cf.  Potter  v.  Couch,  141  U.  S.  290,  §§  124  r, 
ante,  20"  c,  })ost.~\ 

§  207  b.  [The  Court  call  attention  to  the  fact  that  the 
case  does  not  really  involve  the  question  "  whether,  upon 
general  principles  of  equity  jurisprudence,  as  administered 
in  the  courts  of  the  United  States,"  the  interest  of  A.  could 
be  taken  for  his  debts,  but  turned  upon  the  Illinois  law. 
They  say  that  the  limits  within  which  spendthrift  provisions 
"  may  be  made  and  administered,  of  course,  must  be  found 
in  the  law  of  that  jurisdiction  which  is  the  situs  of  the 
property,  in  case  of  real  estate,  and,  in  cases  of  personalty, 
where  the  trust  was  created  or  is  to  be  administered  ac- 


RESTRAINTS   ON   ALIENATION.  253 

cording  to  circumstances.  And  in  determining  those  limits, 
that  law  declares  how  far,  and  by  what  forms  and  modes, 
the  institution  of  property  may  be  permitted  to  accommodate 
itself  to  the  will  and  convenience  of  individuals,  without 
prejudice  to  public  interest  and  policy."  Surely  a  sound 
exposition  of  the  law,  but  it  would  seem  an  exposition  not 
to  be  reconciled  with  the  opinion  in  Nichols  v.  Eaton, 
where,  in  the  case  of  a  Rhode  Island  trust,  Miller,  J.,  to- 
tally disregarded  the  law  of  that  State  as  settled  by  its 
Supreme  Court,  §  179,  ante.1] 

§  267  c.  [In  Potter  v.  Couch,  141  U.  S.  296,  §  124  r, 
ante,  it  was  held  that  an  equitable  fee  could  not  be  made  in- 
alienable, but  that  the  Illinois  statute,  supra,  prevented  its 
being  reached  by  creditors.  On  page  317,  the  Court  say  : 
"  The  case  at  bar  presents  no  question  of  the  validity  of  a 
proviso  that  income  bequeathed  to  a  person  for  life  shall 
not  be  liable  for  his  debts,  such  as  was  discussed  in  Nichols 
v.  Levy,  5  Wall.  433,  in  Nichols  v.  Eaton,  91  U.  S.  716, 
and  in  Spindle  v.  Shreve,  111  U.  S.  452,"  — a  remark  which 
is  noteworthy  as  seeming  to  indicate  that  the  Court  does 
not  feel  itself  committed  to  the  policy  of  Nichols  v.  Eaton 
as  against  that  of  Nichols  v.  Levy.'] 

§  267  d.    [Raynolds  v.  Hanna,  55  Fed.  Rep.  783  ;  s.  0. 

1  [It  may  be  said  that  the  Supreme  Court  of  the  United  States,  though 
following  the  decisions  of  the  State  courts  on  questions  involving  legal  in- 
terests in  property,  does  not  follow  such  decisions  on  questions  involving 
equitable  interests,  and  there  are  dicta,  if  not  decisions,  which  look  that 
way.  Neves  v.  Scott,  9  How.  196  ;  s.  c.  13  How.  268.  Russell  v.  Southard, 
12  How.  139.  Babcock  v.  Wyman,  19  How.  289.  Green  v.  Creighton,  23 
How.  90.  But  this  distinction,  which  was  never  sustainable  on  principle, 
seems  to  be  disregarded  in  the  later  cases.  Lloyd  v.  Fulton,  91  U.  S.  479. 
Brine  v.  Ins.  Co.,  96  U.  S.  627.  Orvis  v.  Powell,  98  U.  S.  176.  Peters  v. 
Bain,  133  U.  S.  670,  685,  686.  See,  however,  Kirby  v.  Lake  Shore  Rail 
road,  120  U.  S.  130.] 


254  RESTRAINTS   ON   ALIENATION. 

sub  nom.  Brooks  v.  Raynolds,  59  Fed.  Rep.  923.  A  tes- 
tator devised  the  residue  of  his  estate  to  a  trustee  in 
trust  to  apply  the  income  in  making  certain  payments,  and 

to  divide  the  remainder  of  the  income  into  two  equal  parts, 
one  to  be  expended  by  the  trustee  for  the  benefit  of  the 
testator's  son  C.  and  his  family,  so  long  as  C.  should  live, 
or  in  case  the  trustee  deemed  it  proper  and  best,  but  in 
no  event  otherwise,  to  pay  the  whole  or  any  portion  of  such 
part  to  C.  The  other  part  of  the  remainder  of  the  income 
was  given  for  the  benefit  of  the  children  of  A.,  a  deceased 
daughter  of  the  testator  ;  and  in  the  expenditure  of  income 
for  the  benefit  of  C.  and  his  family,  as  well  as  for  the 
children  of  A.,  the  testator  desired  the  executor  to  have 
in  view  the  maintenance  and  education  of  his  grand- 
children "  on  a  scale  comporting  with  their  condition  and 
rank  in  life,"  and  if,  in  the  judgment  of  the  trustee,  the 
income  could  not  be  properly  and  judicially  expended  or 
advanced  to  C.  and  his  family,  and  to  the  children  of  A., 
he  directed  the  trustee  to  invest  such  surplus  as  might 
remain  for  the  benefit  of  the  child  or  grandchild  "who 
would  be  entitled  to  it  under  the  foregoing  plan  of  distri- 
bution." The  testator  further  directed  that  the  trustee 
should  hold  the  estate  and  distribute  and  invest  the  in- 
come, as  provided,  until  the  youngest  child  of  A.  then 
living  should  come  of  age,  or  until  such  further  period  as, 
in  his  opinion,  the  welfare  of  C.  or  of  the  testator's  grand- 
children would  be  thereby  promoted  ;  and  whenever  it 
should  so  seem  prudent  to  the  trustee,  but  in  no  event 
till  then,  the  testator  directed  him  to  divide  the  residue 
equally  among  his  grandchildren  then  living,  the  issue  of 
any  deceased  grandchild  taking  the  share  which  such  grand- 
child would  have  taken  if  living.     The  trustee  was  also 


RESTRAINTS  ON  ALIENATION.  255 

authorized,  in  case  he  should  deem  it  prudent  and  proper 
so  to  do,  but  in  no  event  otherwise,  to  make  advances 
from  the  principal  to  C.  for  the  benefit  of  himself  and 
his  family,  in  such  amounts  and  at  such  times  as  the  trus- 
tee should  deem  prudent  and  safe,  but  such  advances  not 
to  be  so  great  as  to  amount  to  half  the  principal,  and  to 
be  deducted  from  the  amount  that  would  be  due  to  the 
children  of  C.  under  the  foregoing  provisions.] 

§  267  e.  [A  codicil  revoked  this  last  provision  of  the 
will  authorizing  an  advance  to  C.  It  also  directed  that 
the  one  half  of  the  income  to  be  expended  for  the  benefit 
of  C.  and  his  family  should  be  so  expended  for  his  benefit 
only  until  the  time  arrived  for  the  final  distribution,  and 
that  to  this  extent  the  words  directing  said  one  half  to  be 
expended  for  his  benefit  so  long  as  C.  should  live  should 
be  modified  and  controlled ;  that  said  one  half  of  the  in- 
come which  was  to  be  expended  for  the  benefit  of  C. 
should,  until  expended  or  otherwise  disposed  of,  be  held 
by  the  trustee  in  trust  to  apply  as  the  trustee  should  think 
best,  and  not  otherwise,  for  the  benefit  of  C.  and  his 
family ;  also  that  any  portion  of  the  share  of  income  which 
might  be  invested  for  the  benefit  of  C.  should  be  held  by 
the  trustee,  the  same  to  be  expended  for  C.'s  benefit,  or 
paid  to  him  at  such  time  and  in  such  amounts  as  the 
trustee  might  deem  best,  and  not  otherwise.  The  codicil 
further  directed  that  unless  the  executor  should  have 
sooner  made  a  final  distribution  of  the  estate,  such  final 
distribution  should  be  made  on  the  death  of  C.  provided 
that  the  youngest  child  of  A.  should  then  be  of  age ;  and 
that,  if  C.  should  have  no  children  or  grandchildren  living 
at  the  time  of  the  final  distribution,  the  trustee  should 
hold  one  half  of  the  estate,  as  it  might  then  exist,  in  trust 


256  RESTRAINTS  ON  ALIENATION. 

for  C.'s  life,  giving  to  C.  so  much  of  the  income  as  he 
might  deem  best,  and  on  C.'s  death  distributing  the  prin- 
cipal to  the  children  and  grandchildren  of  A.  It  appeared 
in  evidence  that  at  the  date  of  the  will  C.  was  a  man  of 
spendthrift  habits  and  hopelessly  involved  in  debt.] 

§  '2(J7f-  [A  judgment  creditor  of  C.  brought  a  bill  to 
reach  C.'s  interest  under  the  will.  The  suit  was  in  the 
Circuit  Court  of  the  United  States  for  the  Northern 
District  of  Ohio.  Judge  Jackson,  the  Circuit  Judge,  de- 
cided that  of  the  one  half  income  of  the  residue  given  for 
the  benefit  of  C.  and  his  family  C.  was  entitled  to  half, 
and  that  this  share  of  his  could  be  reached  for  his  debts. 
The  learned  judge  pointed  out  that  the  Supreme  Court  has 
never  departed  from  the  English  rule,  and  evidently  disap- 
proved of  the  dicta  in  Nichols  v.  Eaton.  The  case  was 
taken  to  the  Circuit  Court  of  Appeal,  after  Judge  Jackson 
had  been  appointed  to  the  Supreme  Court  of  the  United 
States,  and  the  decree  was  reversed.  The  Court  thought 
the  case  was  "  within  the  extremest  doctrine  of  the  Eng- 
lish courts  as  to  bequests  for  the  maintenance  and  support 
of  more  than  one  cestui  qui  trust."  But  they  added  :  "  We 
do  not  thereby  intend  to  be  understood  as  assenting  to  the 
proposition  maintained  by  those  courts,  that  the  power  of 
alienation  is  a  necessary  incident  to  a  life  estate  in  rents, 
dividends,  or  income.  That  doctrine  is  not  necessarily  in- 
volved. The  great  weight  of  American  authority  seems  to 
be  against  the  extreme  view  of  the  English  courts.'  ] 

§  208.  Sandwich  Islands.  —  Finally,  the  old  law  is  ad- 
hered to  in  the  Sandwich  Islands.  In  Harris  v.  Judd, 
'A  Hawaii,  421,  a  testator  devised  to  0.  realty  and  person- 
alty, "  the  income  of  the  same  to  be  paid  to  him  by  my 
executor  for  his  use  and  support  for  the  term  of  his  life, 


RESTRAINTS  ON  ALIENATION.  257 

and  after  the  death  of  0."  he  devised  the  property  to  O.'s 
heirs.  Held  by  the  Supreme  Court  (Allen,  C.  J.,  dissent- 
ing) that  O.'s  interest  was  assignable. 

§  268  a.  A  clause  forbidding  alienation  being  invalid  in 
a  settlement  upon  others,  it  is  a  fortiori  invalid  in  a  settle- 
ment upon  the  settlor  himself.  See  §§  91-95,  ante.  And 
even  where,  as  in  Massachusetts,  a  clause  against  antici- 
pation has  been  held  good  in  a  devise  of  an  equitable  life 
estate  {Broadway  Bank  v.  Adams,  133  Mass.  170,  §  240  b, 
ante),  it  has  been  held  bad  in  a  conveyance  of  property  to 
a  trustee  in  trust  to  pay  the  income  to  the  settlor  for  life, 
"  upon  her  sole  and  separate  order  or  receipt,  the  same  not 
to  be  by  way  of  anticipation,"  with  a  gift  over.  Pacific 
Bank  v.  Windram,  133  Mass.  175,  §  277  a,  post.  [Jack- 
son v.  Von  Zedlitz,  136  Mass.  342.]  Bryan  v.  Knicker- 
backer,  1  Barb.  Ch.  409,  §  180,  ante.  Mcllvaine  v.  Smith, 
42  Mo.  45,  and  Lackland  v.  Smith,  5  Mo.  App.  153, 
§  240^,  ante-  Mackasons  Appeal,  42  Pa.  330,  §  226, 
ante.  [Johnston  v.  Harry,  2  Pa.  82.  Andress  v.  Lewis, 
17  W.  K  C.  (Pa.)  270.  Leicis  v.  Miller,  21  W.  X.  C. 
94.  Ghormley  v.  Smith,  139  Pa.  584.  Warner  v.  Rice, 
66  Md.  436.  See  Stewart  v.  Madden,  153  Pa.  445.  On 
the  effect  of  coverture  upon  settlements  by  women  of  their 
own  property,  see  §  277  a,  })ost.] 

§  268  b.  C.  gave  a  life  interest  which  he  possessed  to 
trustees  in  trust  during  his  life,  to  pay,  apply,  lay  out,  and 
expend  the  income  in  and  towards  the  maintenance,  cloth- 
ing, lodging,  and  support  of  himself  and  his  present  or  any 
future  wife,  and  his  children  or  any  of  them,  or  otherwise 
for  their  or  any  of  their  use  and  benefit,  in  such  manner  as 
the  trustees  should  in  their  uncontrolled  discretion  think 
proper.     This  was  done  at  the  request  of  C.'s  brother,  and 

17 


258  RESTRAINTS  ON  ALIENATION. 

on  the  consideration  of  tlic  brother's  paying  C.'s  debts.  It 
was  held,  by  Wood,  V.  C,  that  the  settlement,  being  for 
valuable  consideration,  and  C.  having  no  rights  against  the 
absolute  discretion  of  the  trustee,  the  trust  was  good. 
Holmes  v.  Penney,  3  K.  &  J.  90,  §  163,  ante.  See  §  170, 
ante. 

£  268  c.  [In  Bank  of  Commerce  v.  Chambers,  90  Mo. 
159,  a  husband,  by  releasing  his  tenancy  by  the  curtesy, 
was  held  to  be  a  purchaser  for  value  of  an  equitable  life  in- 
terest under  his  wife's  will,  and  a  provision  that  his  interest 
should  be  free  from  liability  for  his  debts  Mas  held  void. 
See  the  ease  more  fully  stated,  §  240  6',  ante."] 

§  269.  The  well-recognized  exception  to  the  invalidity 
of  restraints  on  the  alienation  of  life  interests  which  pre- 
vails in  the  ease  of  the  separate  estate  of  married  women,  has 
been  already  referred  to.  §§  1  40-142,  ante.  It  is  perfectly 
consistent  with  the  general  doctrine  which  underlies  this 
whole  subject.  That  doctrine  is,  that  it  is  against  public 
policy  to  permit  restraints  to  be  put  upon  transfers  which 
the  law  allows.  But  the  common  law  does  not  allow  mar- 
ried women  to  transfer  their  property.  The  separate  estate 
which  allows  a  transfer  is  the  creature  of  equity,  and  it  can- 
not be  deemed  against  public  policy  for  equity  to  permit 
its  creation  to  be  moulded  by  a  clause  against  anticipation  ; 
for  the  tendency  of  such  clause  is  only  to  put  the  married 
woman  where  the  common  law  has  always  put  her.  Jack- 
son v.  Hobhouse,  2  Mer.  483,  487.  Tullett  v.  Armstrong, 
1  Myl.  &  Cv.  377,  393,  394,  405.     [See  §  256,  ante.] 

i:  270.  The  only  estate  to  which  a  restraint  upon  antici- 
pation can  be  joined  is  a  married  woman's  separate  estate 
in  equity.  [Stogdon  v.  Lee,  [1891]  1  Q.  B.  (C.  A.)  001  ; 
and  see  Baggett  v.  Meux,  1  Coll.  13.8,  147.]     What  words 


RESTRAINTS   OX  ALIENATION.  259 

will  suffice  to  give  a  separate  estate,  this  is  not  the  place 
to  consider.  See  Hulme  v.  Tenant,  and  notes,  1  L.  C.  Eq. 
(5th  ed.)  521,  (4th  Am.  cd.)  *481 ;  Haynes's  Outlines  Eq., 
Lect.  VII.  The  separate  estate  is  generally  for  life,  but  it 
maybe  a  fee  or  absolute  interest;  and  a  clause  against 
anticipation  may  be  attached  to  a  fee  when  it  is  separate 
estate,  as  well  as  to  a  life  interest.  See  §§  125-131  k, 
133,  ante.  [The  clause  against  anticipation  is  valid,  al- 
though the  married  woman  has  been  herself  the  settlor. 
The  law  in  Massachusetts  is  otherwise.  See  §  277  a, post. 
On  inserting  clauses  against  anticipation  in  carrying  out 
executory  trusts,  see  §  125  a,  ante.] 

§  271.  The  restraint  against  anticipation  cannot  be  re- 
moved by  any  one.  [It  will  not  be  set  aside  even  to  relieve 
against  a  married  woman's  fraud,  or  breach  of  trust.  Pem- 
berton  v.  McGill,  1  Dr.  &  Sin.  266.  Arnold  v.  Woodhams, 
L.  R.  16  Eq.  29.  Stanley  v.  Stanley,  7  Ch.  D.  589. 
Thomas  v.  Price,  46  L.  J.  N.  S.  Ch.  761.  Nor  will  acqui- 
escence by  the  married  woman  be  any  excuse  to  a  trustee 
for  disregarding  it.  Cocker  v.  Qiiayle,  1  Russ.  &  M.  535. 
Fletcher  v.  Green,  33  Beav.  426.  Hale  v.  Sheldrake,  60 
L.  T.  292.  Heath  v.  Wickham,  3  L.  R.  Ir.  376  ;  but  on 
the  effect  of  laches  in  prosecuting  a  claim  see  Derbishire  v. 
Home,  3  DeG.  M.  &  G.  80,  102,  113;  Heath  v.  Wickham, 
3  L.  R.  Ir.  376,  390.]  Even  the  Court  cannot  release  it, 
although  to  do  so  would  be  for  the  unquestionable  advan- 
tage of  the  feme  covert;  Robinson  v.  Wheelwright,  21  Beav. 
214 ;  s.  c.  6  De  G.  M.  &  G.  535  ;  or  although  she  is  domi- 
ciled in  a  country  where  such  restraints  are  unlawful. 
Peillon  v.  Brooking,  25  Beav.  218. 

§  271  a.  [The  Conveyancing  and  Law  of  Property  Act, 
1881  (44  &  45  Vict.  c.  41),  §  39,  provides  that  "notwith- 


260  RESTRAINTS  ON  ALIENATION. 

standing  that  a  married  woman  is  restrained  from  anticipa- 
tion, the  Court  may,  if  it  thinks  lit,  where  it  appears  to  the 
Court  to  be  for  her  benefit,  by  judgment  or  order,  with  her 
consent,  bind  her  interest  in  any  property."  The  eases  de- 
cided under  this  section  arc  numerous.  Hodges  v.  Hodges, 
20  Ch.  D.  749.  Be  Lilliwall's  Settlement  Trusts,  30  W.  R. 
243.  Tamplin  v.  Miller,  Id.  422.  Sedgwick  v.  Thomas, 
48  L.  T.  100.  Musgrave  v.  Sandeman,  Id.  215.  Be 
Warren's  Settlement,  52  L.  J.  N.  S.  Ch.  928;  s.  c.  49  L.  T. 
G96.  Ex  parte  Thompson,  Weekly  Notes  (1884),  28.  In 
re  Jordan,  .").">  L.  J.  X.  S.  Ch.  830.  Be  ('urn//,  50  L.  J. 
N.  S.  Ch.  389.  Be  C.'s  Settlement,  50  L.  T.  299.  Be 
Little,  40  Ch.  Div.  418.  Latham  v.  Latham,  Weekly  Notes 
(1889),  171.  Be  Badcliffe,  39  W.  R.  457.  Be  Milners 
Settlement,  [1891]  3  Ch.  547-  Ailesbury  v.  Iveagh,  [1893] 
2  (li.  345.  Be  Flood's  Trusts,  11  L.  11.  Ir.  355.  Be 
Wright's  '/'rusts,  15  L.  R.  Ir.  331.  Be  Segraves  Trusts, 
17  L.  R.  Ir.  373.  Be  Millar,  25  L.  R.  Ir.  107-  Be  Ten- 
uaufs  Estate,  Id.  522.     80  Law  Times,  372,  390.] 

§  2/1  b.  [St.  50  &  57  Vict.  c.  03,  §  2  (1893),  enacts 
that  the  Court  may  order  the  payment  out  of  the  property 
of  a  feme  covert  plaintiff  of  the  costs  of  the  defendant,  al- 
though such  property  be  subject  to  a  restraint  on  anticipa- 
tion.    Be  Godfrey,  71  L.  T.  508.] 

§  2/2.  There  is  one  class  of  eases,  however,  in  which 
the  courts  disregard  a  restraint  upon  anticipation  attached 
to  a  separate  estate  ;  and  that  is,  when  to  regard  it  would 
make  the  estate  to  which  it  is  attached  too  remote.  The 
Rule  against  Perpetuities  declares  that  every  estate  or  in- 
terest which  requires  the  happening  of  a  contingency,  or 
the  arrival  of  a  time  certain,  as  a  condition  precedent, 
is  bad,  unless  the  contingency  must  happen,  or  the  time 


RESTRAINTS   ON   ALIENATION.  261 

must  arrive,  within  a  life  or  lives  in  being  and  twenty-one 
years.  An  estate  in  fee  simple  or  a  life  estate  may  be 
given  to  the  unborn  child  of  a  living  person,  because  the 
whole  interest  must  vest,  and  the  child  have  an  estate 
free  from  any  condition,  within  the  required  time.  But  if 
there  is  a  clause  against  anticipation  attached  to  the  estate, 
then  the  estate  cannot  be  dealt  with  as  a  whole,  for  it 
is  a  condition  precedent  to  dealing  with  the  income  of 
each  year  that  the  year  shall  arrive  ;  and  as  this  may  not 
happen  within  the  time  limited  by  the  Rule  against  Per- 
petuities, an  estate  to  an  unborn  child  with  a  clause  against 
anticipation  will  be  too  remote.  Such  estates  might  be 
treated  in  two  ways :  either  they  might  be  declared  bad, 
or  else  the  clauses  against  anticipation  might  be  disregarded, 
in  which  case  the  estates  would  be  good.  The  latter 
method  is  that  which  has  been  adopted.  [A  third  method 
is  possible.  The  restraint  might  be  considered  good  for 
twenty-one  years  after  lives  in  being,  each  instalment  of 
income  being  considered  a  separate  interest,  but  this  seems 
never  to  have  been  suggested.] 

§  272  a,  The  course  of  decision  has  been  as  follows. 
In  Carver  v.  Bowles,  2  Russ.  &  M.  301,  304,  307,  308 
(1831),  Sir  John  Leach,  M.  R.,  held  that  a  clause  against 
anticipation  attached  to  a  gift  under  a  power  to  a  daughter 
unborn  at  the  date  of  the  settlement  containing  the  power, 
was  good  ;  but  the  only  point  discussed  was  whether  the 
power  allowed  anticipation  to  be  restrained  ;  the  question 
of  remoteness  was  not  alluded  to.  In  Thornton  v.  Bright, 
2  Myl.  &  Cr.  230  (1836),  under  a  power  in  a  marriage 
settlement  to  appoint  to  the  children  of  the  marriage, 
Lord  Cottenham,  C,  held  that  an  appointment  to  trustees 
for  the  separate  use  of  a  daughter  was  good.     The  ap- 


262  RESTRAINTS  ON  ALIENATION. 

point  mult  directed  that  the  daughter  should  have  no 
power  of  anticipation.  Nothing  was  said  about  this  clause 
in  the  arguments,  and  the  Chancellor  does  not  appear  to 
have  passed  upon  its  validity.  In  Dickinson  v.  Mort, 
8  Hare,  1 78  (1850),  the  same  question  arose  as  in  Thorn- 
ton v.  Bright,  and  the  appointment  to  separate  use,  with 
a  clause  against  anticipation,  was  held  good;  but  here 
again  the  question  of  remoteness  did  not  occur  to  court 
or  counsel. 

§  272  b.  In  Fry  v.  Capper,  Kay,  1G3  (18.53),  Wood, 
V.  C,  held  that  an  appointment  like  that  in  Thornton  v. 
Bright  was  good,  notwithstanding  there  was  a  clause 
against  anticipation.  All  that  he  had  to  decide  was  that 
the  appointment  was  good  ;  but  he  strongly  intimated 
that  the  clause  against  anticipation  was  bad  for  remote- 
ness, and  must  be  rejected.  See  3  Jur.  X.  S.  Part  2, 
p.  213,  for  an  article  on  Fry  v.  Capper  and  the  earlier 
cases.  In  Armitage  v.  Coates,  35  Beav.  1  (1865),  Lord 
Romilly,  M.  11.,  gave  it  as  his  "  strong  impression  "  that 
such  a  clause  would  be  too  remote ;  but  he  said,  "  I  do 
not  express  any  opinion  "  on  it,  and  determined  the  case 
on  a  ground  which  made  the  decision  of  the  question 
unnecessary. 

§  2/2  e.  In  Re  Teague's  Settlement,  L.  R.  10  Eq.  564 
(1870),  Vice-Chancellor  James  held  that  a  clause  against 
anticipation  attached  to  an  estate  given  to  an  unborn  child 
should  be  disregarded.  This  was  the  first  time  that  the 
point  was  distinctly  determined.  The  same  question  was 
decided  in  the  same  way  by  M alius,  V.  C,  in  Re  Cunyng- 
hame's  Settlement,  L.  R.  11  Eq.  324  (18/1). 

§  272  d.  In  Re  Ridley,  Buckton  v.  Hay,  11  Ch.  D. 
645  (1879),  Jesscl,  M.  R.,  followed  the  cases  cited  in  the 


RESTRAINTS  ON  ALIENATION.  203 

two  preceding  sections,  but  reluctantly,  thinking  them 
wrongly  determined.  He  argued  that  the  restraint  on 
anticipation  was  an  exception  to  the  whole  law,  including 
the  Rule  against  Perpetuities ;  that  it  was  not  merely  an 
exception  to  the  rule  allowing  free  alienation,  "  but  an 
exception  along  the  whole  line,  so  to  speak."  (p.  651.) 
But  was  not  the  decision  of  the  learned  judge  right,  in 
spite  of  his  own  argument  against  it  ?  The  clause  against 
anticipation  subjects  all  dealing  with  the  income  of  prop- 
erty to  a  condition,  namely,  that  the  income  must  be 
earned  ;  but  such  a  condition,  when  it  may  continue  beyond 
the  time  fixed  by  the  Rule  against  Perpetuities,  is  as  ob- 
noxious to  the  rule  as  any  other.  The  rule  is  peremptory 
in  its  character ;  and  the  point  having  been  repeatedly  ad- 
judged that  these  cases  should  not  form  an  exception,  it 
is  hard  to  see  the  principle  on  which  such  exception  can 
be  insisted  on.  The  learned  judge  said  that  allowing  the 
clause  against  anticipation  in  the  case  of  married  women 
was  an  exception  to  the  rule  that  all  property  must  be 
alienable,  and  as  the  Rule  against  Perpetuities  is  also  a 
rule  in  favor  of  alienation,  the  clause  against  anticipation 
ought  to  be  allowed  as  an  exception  to  that  too.  But 
there  would  seem  to  be  a  fallacy  here.  The  general  rule 
that  property  is  alienable,  to  which  the  clause  against  an- 
ticipation is  an  exception,  is  a  rule  that  people  may  con- 
vey their  interests  in  property,  whatever  they  may  be  ;  but 
the  Rule  against  Perpetuities  is  not  a  rule  favoring  aliena- 
tion in  this  sense  ;  its  effect  is  to  forbid  the  creation  of  cer- 
tain future  estates ;  it  is  only  a  rule  favoring  alienation  in 
so  far  as  estates  subject  to  remote  conditions  are  not  as 
marketable  as  those  which  are  not.  The  possessor  of  any 
interest  in  property  could  alienate  what  he  had  got  just  as 


264  RESTRAINTS  ON  ALIENATION. 

well  if  the  Rule  against  Perpetuities  did  not  exist,  as  he  can 
under  it.  Sec  §  !',,  ante.  [The  case  of  Hodgson  v.  Hal- 
ford,  11  Ch.  I).  959,  as  is  remarked  in  Marsden,  Perpetu- 
ities, 281,  282,  note  (o),  seems  to  have  presented  the 
question,  hut  it  was  not  considered.  Re  Ridley  and  the 
cases  on  which  it  went  have  heen  followed  in  lie  Erring- 
ton,  Weekly  Notes  (1887),  23.] 

§  272  e.  In  the  case  of  Re  Ridley,  Buckton  v.  Hay,  11 
Ch.  1).  04.3,  the  married  women  the  restraint  on  whose  in- 
terest was  held  invalid  were  in  fact  born  in  the  lifetime  of 
the  testator,  although  they  belonged  to  a  class  which  might 
have  included  persons  born  after  his  death;  and  the  same 
was  the  ease  in  Re  Michael's  Trusts,  46  L.  J.  Ch.  651 
(1877),  where  Hall,  V.  C,  held  like  restraints  to  be  void. 
But  this  point  was  not  brought  to  the  attention  of  the 
Court  in  either  case  ;  and  in  Herbert  v.  Webster,  15  Ch.  D. 
610,  Hall,  V.  C,  held  that,  where  the  shares  in  settled 
property  must  all  be  determined  within  the  time  prescribed 
by  the  Rule  against  Perpetuities,  a  clause  against  antici- 
pation was  not  void,  so  far  as  it  attached  to  the  shares  of 
those  who  were  alive  at  the  date  of  the  settlement.  See 
Wilson  v.  Wilson,  28  L.  J.  N.  S.  Ch.  95,  4  Jur.  N.  S.  1076; 
[Cray,  Rule  against  Perpetuities,  §§  389-392,  441.] 

§  272/  In  Cooper  v.  Laroche,  17  Ch.  D.  368  (1881), 
Malins,  V.  C,  adhered  to  his  decision  in  Re  Cunynghame's 
Settlement,  L.  R.  11  Eq.  324,  §  272  c,  ante.  He  thought 
that  he  was  not  called  upon  in  Cooper  v.  Laroche  to  decide 
the  point,  because  the  woman  to  whose  daughters  the  re- 
stricted interest  was  given  was  past  child-bearing  at  the 
testator's  death,  and  therefore  .all  the  persons  who  could 
possibly  take  were  then  alive.  The  fact  that  the  mother 
was  past  child-bearing  could  have  no  effect  on  the  result. 


RESTRAINTS   ON   ALIENATION.  265 

This  has  been  settled  law  since  Jee  v.  Audley,  1  Cox,  324. 
But,  notwithstanding  this  palpable  error,  the  decision  may 
be  supported  on  what  seems  the  sound  view  taken  in  Her- 
bert v.  Webster,  15  Ch.  D.  610,  §  272  e,  ante.  See  articles 
in  71  Law  Times,  186,  and  73  Law  Times,  409. 

§  272  g.  [On  the  matters  discussed  in  §§  272-272 /, 
ante,  see  Marsden,  Perp.  281-283;  Gray,  Rule  against 
Perp.  §§  432-437.  Where  spendthrift  trusts  are  allowed, 
either  by  statute  or  local  custom,  for  unmarried  women  and 
for  men,  the  same  results  would,  it  is  supposed,  be  reached 
as  have  been  reached  with  regard  to  restraints  on  antici- 
pation of  the  separate  estates  of  married  women,  when  to 
enforce  them  would  violate  the  Rule  against  Perpetuities, 
that  is,  the  interests  would  be  held  good  and  the  restraints 
bad.  See  Tarrant  v.  Backus,  63  Conn.  277 ;  Gray,  Rule 
against  Perpetuities,  §  438.] 

§  272  h.  [In  Willoughby  v.  Middleton,  2  J.  &  H.  344, 
by  the  marriage  settlement  of  an  infant  property  was  put 
in  trust  to  pay  the  income  to  her  for  life,  without  power  of' 
anticipation,  and  she  covenanted  to  settle  after  acquired 
property  on  the  same  trusts.  During  coverture  property 
was  bequeathed  to  her.  Wood,  V.  C,  held  that,  if  she 
refused  to  settle  this  property,  her  interest  under  the  trust 
could,  by  the  doctrine  of  election,  be  taken  to  compensate 
those  injured  by  her  refusal  to  carry  out  the  covenant.  This 
was  disapproved  by  Jessel,  M.  R.,  in  Smith  v.  Lucas,  18 
Ch.  D.  531,  and  Chitty,  J.,  in  Re  Wheatley,  27  Ch.  D. 
606,  but  was  followed  by  the  latter  judge,  though  reluc- 
tantly, in  Re  Queade's  Trusts,  53  L.  T.  74,  and  also  by 
Kay,  J.,  in  Re  Vardorfs  Trusts,  28  Ch.  D.  124;  but  the 
last  case  was  reversed  by  the  Court  of  Appeals,  which 
held  that  the  married  woman  was  not  put  to  her  election, 


266  RESTRAINTS   ON    ALIENATION'. 

31  Ch.  Div.  275,  and  the  same  was  held  in  Hamilton  v. 
Hamilton,  [1892]  1  Ch.  386.  What  the  law  would  be  if 
the  instrument  under  which  the  election  would  take  place 
were  entirety  independent  of  the  instrument  by  which  the 
feme  covert's  inalienable  interest  was  created,  —  for  in- 
stance, if  A.  settled  property  in  trust  for  M.,  a  married 
woman,  with  restraint  on  anticipation,  and  B.,  by  will,  gave 
the  same  property  to  T.  and  also  a  legacy  to  M.,  —  does  not 
appear  to  have  been  directly  decided,  but  it  is  submitted 
that  the  married  woman  would  not  be  put  to  her  election. 
If  she  were,  she  might  take  the  legacy,  and  give  up  her  in- 
come under  the  trust  fund,  and  then  squander  her  legacy 
and  "  pass  the  rest  of  her  life  in  that  very  poverty  and  need 
against  which  the  inalienable  provision  of  the  settlement 
was  designed  to  protect  her."  lie  Vardon's  Trusts,  31 
Ch.  Div.  '27'),  281.  See  Robinson  v.  Wheelwright,  6  De  G. 
M.  &  G.  535,  548  ;  Cahill  v.  Martin,  5  L.  R.  Ir.  227,  248; 
S.  C.  7  L.  R.  Ir.  3(51  ;  sub  nom.  Cahill  v.  Cahill,  8  A  p.  Cas. 
420,  430;  82  Law  Times,  426.] 

§  2/3.  Although  interest  on  securities  is  often,  for  many 
purposes,  deemed  to  accrue  de  die  in  diem-,  a  married 
woman  who  is  restrained  from  anticipation  cannot  assign 
the  interest  until  it  becomes  payable  according  to  the  terms 
of  the  security.  Re  Brettle,  Jollands  v.  Burdett,  2  DeG. 
J.  &  S.  79. 

§  273  a.  [When  one  of  the  shares  of  an  estate  held  in 
common  is  settled  on  or  devised  to  a  married  woman  with 
a  clause  against  anticipation,  such  share  is  subject  to  the 
costs  in  a  partition  suit.  Fleming  v.  Armstrong,  34  Beav. 
109  ;  and  it  was  held  in  Wilton  v.  Hill,  25  L.  J.  N.  S.  Ch. 
156,  that  in  a  suit  against  trustees  for  an  account,  a  married 
woman  could  be  a  party  to  a  compromise,  although  her  in- 


RESTRAINTS   ON  ALIENATION.  267 

terest  was  subject  to  a  clause  against  anticipation.     See, 
however,  Heath  v.  Wiekham,  5  L.  R.  Ir.  285.] 

§  273  b.  [Accrued  income  in  the  hands  of  the  trustees 
is  of  course  liable  for  obligations  contracted  after  the  ac- 
crual. Fitzgibbon  v.  Blake,  3  Ir.  Ch.  328.  See  Everett 
v.  Paxton,  65  L.  T.  383.  On  the  form  of  a  power  of  at- 
torney to  collect  income  subject  to  a  clause  against  antici- 
pation, see  Stewart  v.  Fletcher,  38  Ch.  D.  62/.] 

§  273  c.  [How  far,  when  there  is  a  restraint  on  anticipa- 
tion, income  which  has  accrued  in  the  hands  of  the  trustees 
subsequent  to  the  cause  of  action  can  be  reached,  has  been 
a  good  deal  discussed.  Of  course  income  accruing  during 
coverture  after  the  date  of  the  judgment,  decree,  or  order 
in  the  case  cannot  be  reached  (and  see  Morgan  v.  Eyre,  20 
L.  R.  Ir.  541);  and  the  better  doctrine  seems  to  be  that 
only  that  portion  of  a  married  woman's  separate  estate 
which  is  free  from  restraint  at  the  time  of  the  creation  of 
an  obligation  can  be  made  liable  therefor,  and  that  conse- 
quently, if  income  has  accrued  after  the  creation  of  the 
obligation,  but  before  judgment,  or  if  the  woman's  interest 
has  become  free  from  the  restraint  on  anticipation,  as  by 
the  death  of  her  husband,  before  judgment,  such  income  or 
property  cannot  be  taken  to  satisfy  damages  or  costs.  Pike 
v.  Fitzgibbon,  14  Ch.  D.  837  ;  s.  c.  17  Ch.  Div.  454.  Rob- 
erts v.  Watkins,  46  L.  J.  N.  S.  Q.  B.  552.  Re  Glanvill, 
31  Ch.  Div.  532.  Chapman  v.  Briggs,  11  Q.  B.  D.  27. 
Draycolt  v.  Harrison,  17  Q.  B.  D.  147.  Myles  v.  Burton, 
14  L.  R.  Ir.  258.  Some  earlier  cases  to  the  contrary  must 
be  taken  to  be  overruled.  Pemberton  v.  OF  Gill,  1  Dr.  & 
Sm.  266  (?).  Butler  v.  Cumpston,  L.  R.  7  Eq.  16.  Clay- 
don  v.  Finch,  L.  R.  15  Eq.  236.  Re  Andrews,  30  Ch.  D. 
159.     See  Hood  Barrs  v.  Cathcart,  [1894]  2  Q.  B.  (C.  A  ) 


268  RESTRAINTS   ON   ALIENATION. 

559:  also  82  Law  Times,  427.  But  cf.  Cox  v.  Bennett, 
[1891]  1  Ch.  (C.  A.)  617.] 

§  273  '/•  [i2e  Dixon,  35  Ch.  Div.  4.  The  trustees  under 
a  will  paid  to  a  married  woman  money  which  they  should 
have  paid  to  the  trustees  of  her  marriage  settlement  under 
which  she  took  a  life  interest  with  restraint  upon  anticipa- 
tion. She  was  ordered  by  the  Court  to  pay  the  amount  so 
received  by  her  to  the  trustees  of  the  settlement.  Part  of 
it  she  had  spent.  There  was  accrued  income  on  her  share 
in  the  hands  of  the  trustees  of  the  will.  The  Court  of 
Appeal  held  that  so  much  of  this  income  as  had  accrued 
before  the  order  for  repayment  should  be  applied  in  dis- 
charge of  the  deficit.] 

§  273  e.  [Hyde  v.  Hyde,  13  P.  Div.  166.  A  husband 
having  obtained  a  decree  for  divorce,  the  wife  was  ordered 
to  give  up  the  children  to  him.  She  did  not  comply  with 
the  order,  and  a  sequestration  was  issued  against  her  estate. 
She  had  separate  estate  subject  to  a  restraint  on  anticipa- 
tion. The  Court  of  Appeal  held  that  the  income  accrued 
at  the  time  of  the  order  of  sequestration  could  be  reached, 
although  the  income  accruing  afterwards  could  not.  In 
Hood  Barrs  v.  Catheart,  [1894]  2  Q.  B.  559,  565,  572, 
Hyde  v.  Hyde  is  distinguished  from  Pike  v.  Fitzgibbon, 
ubi  supra,  and  the  like  cases,  on  the  ground  that  it  was 
not  to  enforce  a  previous  obligation,  but  was  a  process  for 
contempt.1] 

§  274.    There  was  at  one  time  in  England  great  doubt 

1  [On  the  question  how  far  the  accrued  income  of  property  suhject  to 
restraint  against  anticipation  can  be  reached  for  debt  under  the  English 
Married  Women's  Property  Act,  1882  (45  &  46  Vict.  c.  75),  see  Cox  v. 
Bennett,  [1891]  1  Ch.  (C.  A.)  617  ;  //«<»/  Barrs  v.  Catheart,  \  1S94]  2  Q.  B. 
559  ;  /■'-  Lumley,  Weekly  Notes,  (1894)  77,  corrected  Id.  80;  Fillers  v. 
Edwards,  Id.  212.] 


RESTRAINTS   ON   ALIENATION.  269 

whether  a  restraint  against  anticipation  placed  on  the 
property  of  a  single  woman  would  become  effectual  upon 
her  marriage,  and  also,  what  is  really  the  same  question, 
whether  such  a  restraint  imposed  on  a  married  woman, 
and  which  ceased  on  her  becoming  a  widow,  would  revive 
on  her  second  marriage.  Lord  Cottenham,  C,  in  Masse y 
v.  Parker,  2  Myl.  &  K.  1/4,  said  it  would  not;  but  he 
subsequently  decided  the  contrary,  in  Tullett  v.  Armstrong, 
4  Myl.  &  C  377,  affirming  the  decree  of  Lord  Langdale, 
M.  R.,  1  Beav.  1 ;  and  it  is  now  settled  that  a  restraint 
against  alienation  will  not  bind  a  woman  so  long  as  she  is 
single  or  a  widow,  but  will  bind  her  whenever  she  is  mar- 
ried, unless  the  testator  or  settlor  has  limited  the  restraint 
to  a  particular  coverture.1 

§  274  a.  [Under  the  Married  Women's  Acts  of  1870 
(33  &  34  Vict.  c.  93,  §  12)  and  of  1882  (45  &  46  Vict. 
c.  75,  §  19),  a  married  woman's  property,  though  settled 
on  her  subject  to  restraint  on  anticipation,  is  liable  for  her 
ante-nuptial  debts.  Sanger  v.  Sanger,  L.  R.  11  Eq.  470. 
London  $•  Provincial  Bank  v.  Bogle,  7  Ch.  D.  773.  Re 
Hedgely,  34  Ch.  D.  379.  Axford  v.  Reid,  22  Q.  B.  Div. 
548-  Jay  v.  Robinson,  25  Q.  B.  Div.  467.  Kirk  v. 
Murphy,  30  L.  R.  Ir.  508.  See  Beckett  v.  Tasker,  19  Q. 
B.  Div.  7;  Nicholls  v.  Morgan,  16  L.  R.  Ir.  409.  Other 
cases  under  recent  English  statutes  are  Pratt  v.  Jenner, 
L.  R.  1  Ch.  493  ;  Re  Keane,  L.  R.  12  Eq.  115  ;  Waite  v. 
Morland,  38  Ch.  D.  135;  Re  Onsloiv,  39  Ch.  D.  622; 
Braunstein  v.  Lewis,  64  L.  T.  265  ;  s.  c.  65  L.  T.  449 ; 


1  A  woman  may,  of  course,  so  deal  with  separate  estate,  while  unmar- 
ried, as  to  destroy  the  separate  character  of  the  property,  and  it  will  then 
become  her  husband's  on  coverture.  See  1  L.  C.  Eq.  (5th  ed.)  570-572; 
Nix  v.  Bradley,  6  Rich.  Eq.  43;  [Re  Wood,  61  L.  T.  197.] 


270  RESTRAINTS  OX   ALIENATION. 

Harrison  v.  Harrison,  13  P.  Div.  180  ;  WhittaJcer  v. 
Kershaw,  15  Ch.  Div.  320;  (7oo3  v.  Bennett,  [1891]  1  Ch. 
(('.  A.i  617;  Stogdon  v.  Zawe,  [1891]  1  Q.  B.  (C.  A.) 
CGI  ;  Michell  v.  Michell,  [1891]  P.  10(5,  208,  305.  See 
90   Law  Times,    122;  i/ood  .Barrs  v.    Cathcart,    [1894] 

2  (,).  B.  559  :  Be  Lumley,  Weekly  Notes  (1804),  77,  cor- 
rected I<1.  80  :   /'///o-x  v.  Edwards,!^.  212.] 

§  274  5.  [A  widow  having  a  life  interest  in  property 
mortgaged  it  to  A.,  and  then  married,  upon  which  a 
restraint  upon  anticipation  on  part  of  her  life  interest 
revived.  She  subsequently  charged  her  interest,  so  far  as 
she  could,  in  favor  of  P.  Held  that  the  securities  must  be 
marshalled,  and  the  interest  on  A.'s  mortgage  paid  out  of 
that  part  of  the  income  which  was  subject  to  the  restraint 
upon  anticipation,  ieaving  the  part  which  was  free  from 
such  restraint  to  meet  P.'s  charge.  Re  Loder's  Tru, its, 
56  L.  J.  N.  S.  ( !h.  230.] 

§  2/5.  When  the  question  has  come  up  in  America, 
Tullett  v.  Armstrong  has  been  followed.  Nix  v.  Bradley, 
6  Rich.  Eq.  43.  Fears  v.  Brooks,  12  Ga.  105.  Robert 
v.  West,  15  Ga.  122.  Beaufort  v.  Collier,  6  Humph.  487- 
Phillips  v.  Grayson,  23  Ark.  760.     Bridges  v.  Wilkins^ 

3  Jones,  Eq.  342,  overruling  anything  to  the  contrary  in 
Apple  v.  Allen,  Id.  120,  and  Miller  v.  Bingham,  1  Ired. 
Eq.  423.  [Robinson  v.  Randolph,  21  Fia.  020.]  See 
Schafroth  v.  Amis,  46  Mo.  114.  [But  cf.  the  law  in 
Pennsylvania,  §§  276,  277,  post.] 

§  275  a.  [In  the  English  Chancery  it  is  the  clause 
against  anticipation  which  restrains  the  alienation  by  a 
married  woman  of  her  separate  estate.  If  there  is  no 
clause  against  anticipation,  a  feme  covert  can  dispose  of 
her  separate  estate.     What  amounts  to  a  conveyance,  or 


RESTRAINTS   ON    ALIENATION.  271 

to  the  creation  of  a  lien  or  of  a  right  to  look  to  the  sepa- 
rate estate  for  payment,  is  a  matter  upon  which  there  has 
been  a  difference  of  opinion,  but  that  a  married  woman 
has  the  power  to  convey  her  separate  estate,  or  to  create 
a  lien  or  give  a  right  against  it,  is  clear,  not  only  in  Eng- 
land, but  in  most  of  the  United  States.] 

§  275  b.  [But  in  two  States,  and  it  would  seem  at  the 
present  day  in  two  States  only,  a  married  woman  can  con- 
vey her  separate  property  in  no  other  way  than  as  is  ex- 
pressly provided  in  the  instrument  creating  the  separate 
trust.  If  that  instrument  is  silent  on  the  mode  of  disposi- 
tion, the  feme  covert  cannot  dispose  of  the  property  at  all ; 
she  is  restrained  from  alienation  except  so  far  as  it  is  ex- 
pressly permitted  to  her.  These  States  are  South  Carolina 
and  Pennsylvania.  E wing  v.  Smith,  3  Des.  417-  Robin- 
son v.  Dart,  Dudl.  Eq.  128.  Reid  v.  Lamar,  1  Strob.  Eq. 
27.  (See  Porcher  v.  Daniel,  12  Rich.  Eq.  349.)  Dunn 
v.  Dunn,  1  S.  Car.  350.1  Lancaster  v.  Dolan,  1  Rawle, 
231.  Thomas  v.  Folwell,  2  Whart.  11.  Wallace  v.  Cos- 
ton,  9  Watts,  137.  Rogers  v.  Smith,  4  Pa.  93.  Wright 
v.  Brown,  44  Pa.  224.  Jones's  Appeal,  57  Pa.  369. 
Maurers  Appeal,  86  Pa.  380.  MacConnell  v.  Lindsay, 
131  Pa.  476.  Quin's  Estate,  144  Pa.  444.  See  1  L.  C. 
Eq.  (4th  Am.  ed.)  735-737,  745,  746  ;  Bisp.  Eq.  §  103. 
Any  decisions  or  dicta  to  the  same  effect  in  Rhode  Island, 
New  York,  Maryland,  or  Tennessee  have  been  overruled. 
Ives  v.  Harris,  7  R.  I.  413.  Jaques  v.  Methodist  Epis- 
copal Church,  17  Johns.  548  (overruling  3  Johns.  Ch.  77). 
Cooke  v.   Husbands,  11    Md.  492.      Young  v.  Young,  7 

1  [The  South  Carolina  Courts  allow  the  separate  estate  to  be  charged 
for  its  own  benefit,  that  is,  for  purposes  in  furtherance  of  the  trust  created. 
Cater  v.  Evelcigh,  4  Des.  19.      James  v.  Mayrant,  Id.   591.] 


272  RESTRAINTS  ON  ALIENATION. 

Cold.  4G1.  But  sec  Machir  v.  Burroughs,  14  Ohio  St. 
519.] 

§  '2~")  c.  [In  a  few  other  States,  although,  if  nothing  is 
said  about  power  of  disposal,  the  feme  covert  may  alien- 
ate as  she  pleases,  yet  if  a  mode  of  alienation  is  indicated, 
e.  g.  by  deed  or  by  will,  the  principle  of  interpretation, 
JExpressio  utiius  est  exclusio  alterius,  is  applied,  and  no 
other  mode  of  alienation  can  be  adopted.  The  language 
of  the  eases  is  often  so  vague  that  it  is  difficult  to  state 
the  law  with  precision,  but  this  seems  to  be  the  rule  of 
construction  in  Rhode  Island.  Metealf  v.  Cook,  2  R.  I. 
:?.")."),  as  explained  in  Ives  v.  Harris,  7  R.  I.  41.'}.  So  in 
Maryland.  Tarr  v.  Williams,  4  Md.  Ch.  68.  Williams 
v.  Donaldson,  Id.  414.  Miller  v.  Williamson,  5  Md.  219 ; 
explained  in  Cooke  v.  Husbands,  1 1  Md.  492.  And  in 
Mississippi,  Montgomery  v.  Agricultural  Bank,  10  Sm.  & 
M.  5(50.  Also  in  Tennessee,  Morgan  v.  Mam,  4  Yerg.  375  ; 
Marshall  v.  Stephens,  8  Humph.  159  ;  Ware  v.  Sharp, 
1  Swan,  489 ;  Hoyle  v.  Smith,  1  Head,  90  ;  Campbell  v. 
Fields,  1  Cold.  416  ;  all  commented  on  in  Young  v. 
Young,  7  Cold.  461.  The  statements  in  the  text-books 
(e.  g.  Bisp.  Eq.  §  103  ;  2  Perry  on  Trusts,  §  655),  that  in 
all  or  some  of  the  jurisdictions  mentioned  in  this  section 
the  South  Carolina  rule  is  followed,  are  not  supported  by 
the  authorities.] 

§  275  d.  [In  Virginia,  "  whether  the  specification  of  one 
mode  of  disposition  in  the  settlement  is  an  exclusion  of 
the  right  to  pursue  any  other  .  .  .  seems  not  yet  to  be 
finally  settled."  Nixon  v.  Rose,  12  Grat.  425,  431,  432. 
In  Illinois,  in  Swift  v.  Castle,  23  111.  209,  222,  it  was  held 
"that  a  married  woman  can  only  convey  her  trust  property 
in  the  maimer  authorized,  and  for  the  purposes  specified, 


RESTRAINTS  ON  ALIENATION.  273 

in  the  instrument  creating  the  trust,  if  it  contain  any  such 
provisions;  otherwise  she  may  dispose  of  it,  without 
restraint  either  as  to  manner  or  purpose."  But  there  is 
language  in  later  cases  which  favors  the  South  Carolina 
and  Pennsylvania  doctrine.  Bressler  v.  Kent,  61  111.  426. 
Conkling  v.  Doid,  67  111.  355.  Ennor  v.  Hodson,  134 
111.  32.] 

§  2/5  e.  [When  a  statute  makes  the  estate  of  a  married 
woman  separate  property,  such  estate  may  or  may  not  be 
alienable  like  equitable  separate  property,  and  the  provis- 
ions of  the  statute  may  or  may  not  apply  to  equitable  sep- 
arate property ;  all  depends  upon  the  words  of  the  statute. 
See  Lippincott  v.  Mitchell,  94  U.  S.  7G7 ;  Cookson  v. 
Toole,  59  111.  515 ;  Bressler  v.  Kent,  61  111.  426  ;  Penn- 
sylvania his.  Co.  v.  Foster,  35  Pa.  134  ;  Wrightv.  Brown, 
44  Pa.  224 ;  Shonk  v.  Brown,  61  Pa.  320  ;  Mac  Council  v. 
Lindsay,  131  Pa.  146  ;  Short  v.  Battle,  52  Ala.  456.] 

§  276.  In  Pennsylvania  there  is  another  departure  from 
the  received  doctrine.  As  we  have  seen  (§§  214-216, 
ante),  trusts  in  that  State  are  deemed  passive  whenever  it 
is  possible  to  consider  them  so,  and  in  passive  trusts, 
whether  of  real  or  personal  estate,  the  cestui  que  trust  is 
vested  with  the  legal  title.  A  trust  for  the  separate  use 
of  a  married  woman  is  deemed  an  active  trust,  because, 
unless  it  is  so  considered,  it  cannot  be  preserved  from  her 
husband  or  his  creditors.  Lancaster  v.  Dolan,  1  Rawle, 
231,  247.  Hartley's  Estate,  13  Phil.  392.  [Cf.,  however, 
Carson  v.  Fuhs,  131  Pa.  256.]  But  whenever  a  married 
woman  for  whom  property  is  held  as  her  separate  estate, 
with  or  without  a  clause  against  anticipation,  becomes 
discovert,  the  trust  is  held  to  become  passive,  the  legal 
estate   passes   to   her,   and   the   trust   is   destroyed,  and 

18 


274  RESTRAINTS  ON   ALIENATION. 

does  not  revive  on  a  subsequent  marriage.  So  a  trust 
of  like  kind  for  a  single  woman  vests  in  her  the  legal 
estate,  and  the  trust  becomes  extinct,  and  is  not  re- 
vived on  her  marriage.  Such  trusts  are,  however, 
allowed  when  made  in  contemplation  of  a  particular 
marriage.  The  leading  case  is  Mamersley  v.  Smith,  1 
Whart.  126,  in  which,  following  Massey  v.  Parker, 
2  Myl.  &  K.  174,  it  was  held  that  a  trust  for  the  sepa- 
rate use  of  a  woman  ceased  on  her  husband's  death, 
and  did  not  revive  on  her  second  marriage.  See  Frey- 
vogle  v.  Hughes,  56  Pa.  228  ;  Megargee  v.  Naglee,  64 
Pa.  216  ;  Rea  v.  Cassel,  13  Phil.  159  ;  [Steacy  v.  Rice,  27 
Pa.  75  ;  House  v.  Spear,  1  W.  N.  C.  34 ;  Williams's  Ap- 
peals, 83  Pa.  3/7 ;  Pelerin  v.  Queripel,  4  W.  N.  C.  330 ; 
Shalters  v.  Ladd,  141  Pa.  349  ;  Pillion's  Estate,  35  W.  N. 
C.  68.]  In  Kuhn  v.  Newman,  26  Pa.  227,  trusts  for  the 
separate  estate  of  a  woman  were  held  not  to  become  oper- 
ative on  a  subsequent  marriage  not  in  contemplation  at  the 
creation  of  the  trust ;  and  so  it  was  again  held  in  McBride 
v.  Smyth,  54  Pa.  245 ;  Ogden's  Appeal,  70  Pa.  501  ; 
Snyder's  Appeal,  92  Pa.  504,1  [(overruling  Hughes's  Es- 
tate, 7  W.  N.  C.  539)  ;  YarnalVs  Appeal,  70  Pa.  335  ; 
Campbell  v.  Ingersoll,  2  W.  N.  C.  13  ;  Philadelphia  Trust 
Co.'s  Appeal,  93  Pa.  209  ;  HetricTc  v.  Addams,  12  W.  N.  C. 
367  ;  Nettle's  Appeal,  104  Pa.  214  ;  Stevenson's  Estate,  19 
W.  X.  C.  291 ;  Bristor  v.  Tasher,  135  Pa.  110;  Hildeburn's 
Estate,  8  Pa.  C.  C.  869;  s.  c.  27  W.  N.  C.  471  ;  Quin's 
Estate,  144  Pa.  444  (overruling  s.  c.  sub  nom.  Funk's  Es- 

1  Snyder  v.  Snyder,  10  Pa.  423,  holds  that  chattels  given  to  a  widow 
for  her  separate  use  do  not  pass  to  her  second  husband.  The  case  does 
not  seem  to  be  noticed  in  the  later  decisions,  but  must  be  takeu  to  be  over- 
ruled by  them. 


RESTRAINTS  ON  ALIENATION.  275 

tate,  9  Pa.  C.  C.  113,  s.  c.  27  W.  N.  C.  4/3);  BiddWs 
Estate,  15  Pa.  C.  C.  401.]  In  Wells  v.  McCall,  64  Pa. 
207,  it  was  held  that  a  trust  for  a  separate  estate  made  in 
"  immediate  contemplation  of  marriage  "  was  good.  So  in 
Springer  v.  Arundel,  64  Pa.  218,  and  Ash  v.  Bowen,  10 
Phil.  96.  See  Dodson  v.  Ball,  60  Pa.  492 ;  Pickering  v. 
Coates,  10  Phil.  65 ;  Eastwick's  Estate,  13  Phil.  350. 
[Trusts  under  which  women  are  given  life  interests  are 
often  held  active  for  the  sake  of  those  in  remainder,  and 
spendthrift  trusts  (see  §§  214-235  h)  can  be  made  in  Penn- 
sylvania for  a  woman,  married  or  single,  as  well  as  for  any 
one  else.  Ashhursfs  Appeal,  77  Pa.  464.  DelberVs  Ap- 
peal, 83  Pa.  462.  Dunn's  Appeal,  85  Pa.  94.  Lightness 
Appeal,  11  W.  N.  C.  181.  Kuntzleman's  Estate,  136  Pa. 
142.  Forney's  Estate,  161  Pa.  209.  SchelVs  Estate,  15 
Pa.  C.  C.  372.] 

§  277-  The  results  reached  in  Pennsylvania  are  curious. 
Persons  sui  juris  are  allowed  the  benefit  of  property  which 
their  creditors  cannot  touch ;  but  trusts  for  the  benefit  of 
married  women,  who  are  not  sui  juris,  which  have  been 
favored  in  all  other  jurisdictions,  are  in  Pennsylvania  kept 
within  the  strictest  limits.    [See  also  the  following  section.] 

§  277  a.  [We  have  seen  that  a  condition  or  conditional 
limitation,  or  a  restraint  on  alienation,  attached  to  an  equi- 
table life  interest  is  bad,  when  the  person  having  the  life 
interest  is  himself  the  settlor,  §§  90  et  seqq.,  ante,  but  when 
a  woman  by  a  marriage  settlement  settles  her  own  property 
upon  herself  with  a  clause  against  anticipation,  such  clause 
will  hold  good  during  coverture.  Olive  v.  Careiv,  1  J.  & 
H.  199.  Arnold  v.  Woodhams,  L.  R.  16  Eq.  29.  See 
Beckett  v.  Tasker,  19  Q.  B.  D.  7;  Smith  v.  Whitlock,  55 
L.  J.  N.  S.  Q.  B.  286 ;  Hemingway  v.  Braithwaite,  61 


276  RESTRAINTS  OX   ALIENATION. 

L.  T.  224.  But]  in  Pacific  Bank  v.  Windram,  1:5:5  Mass. 
175,  sec  ^  268,  ante,  a  married  woman  conveyed  personal 
property  to  trustees,  in  trust  to  pay  the  ineoine  to  herself 
for  lite,  "upon  her  sole  and  separate  order  or  receipt,  the 
same  not  to  be  by  way  of  anticipation,"  with  a  gift  over. 
She  and  her  husband  assigned  all  her  interest  in  the  in- 
come. Held  that  the  assignment  was  good.  To  appre- 
ciate the  effect  of  this  decision,  it  must  be  borne  in  mind 
that  in  Massachusetts  such  assignment,  if  made  by  a  man 
upon  whom  property  not  his  own  had  been  settled  with  a 
like  clause  against  anticipation,  would  not  have  been  good. 
Broadway  Bank  v.  Adams,  133  Mass.  170,  §  210  b,  ante. 
[In  Pacific  Bank  v  Windram,  the  settlement  was  after 
marriage ;  a  like  result  was  reached  in  a  case  where  the 
settlement  was  before  marriage.  Jackson  v.  Von  Zcdlitz, 
136  Mass.  342.]  In  Massachusetts,  therefore,  the  law  is, 
that  in  a  settlement  upon  a  person  other  than  the  settlor, 
or  in  a  devise,  a  clause  against  anticipation  of  an  equitable 
life  interest  is  good,  whether  the  life  tenant  be  a  married 
woman  or  not ;  but  that  a  clause  against  anticipation  of 
an  equitable  life  interest  settled  upon  the  settlor  is  bad, 
whether  the  settlor  be  a  married  woman  or  not;  that  is, 
married  women  are  treated  in  these  matters  just  like  the 
rest  of  the  world.  [In  Grhormley  v.  Smith,  139  Pa.  584, 
the  Supreme  Court  of  Pennsylvania  held  that  a  spinster, 
not  then  in  contemplation  of  marriage,  could  not  settle  her 
property  upon  herself  for  life,  so  as  to  protect  such  estate 
from  her  creditors  during  a  subsequent  coverture.  See 
also  Stewart  v.  Madden,  153  Pa.  445,  and  §  2/6,  ante.~\ 
It  is  singular  that  Pennsylvania  and  Massachusetts,  the 
two  jurisdictions  which  led  the  departure  from  the  com- 
mon law  world  in  allowing  spendthrift  trusts  for  men,  are 


RESTRAINTS  ON  ALIENATION.  277 

also  the  two  which  have  thrown  aside  a  protection  given 
elsewhere  to  the  separate  estates  of  married  women. 
[Whether  any  of  the  other  States  which  have  recently  fol- 
lowed Pennsylvania  and  Massachusetts  in  adopting  spend- 
thrift trusts  will  also  follow  them  in  this  modification  of 
the  law  as  to  married  women,  remains  to  be  determined.] 

D. 

ESTATES   FOR  YEARS. 

§  2/8.  As  we  have  seen,  §  101,  ante,  a  condition  against 
alienation  attached  to  an  estate  for  years  is  valid ;  but  can 
a  man  be  compelled  to  remain  a  tenant  for  years  in  spite  of 
himself?  Will  not  an  assignment  always  be  operative  to 
take  the  estate  from  the  assignor,  although  it  may  subject 
the  estate  to  forfeiture  in  the  hands  of  the  assignee  ?  * 
There  is  no  authority  on  the  point  except  Hobbs  v.  Smith, 
15  Ohio  St.  419,  in  which  a  provision  that  a  term  for  ninety- 
nine  years  should  not  be  liable  for  the  debts  of  the  lessee, 
there  being  no  condition  or  gift  over,  was  held  void.  This 
follows  the  analogy  of  estates  for  life,  and  seems  in  accord- 
ance with  principle ;  in  the  absence,  therefore,  of  any  au- 
thority to  the  contrary,  it  may  be  assumed  to  be  a  correct 
statement  of  the  law.  [In  those  States  where  spendthrift 
trusts  are  allowed  there  seems  to  be  no  decision  or  dictum 
as  to  the  treatment  of  terms  for  years.  Some  curious  and 
difficult  questions  may  arise  with  regard  to  them.] 

§  2/8  a.  If  an  estate  for  years  is  the  separate  property 
of  'a  married  woman,  a  restraint  on  its  anticipation  is  un- 
doubtedly good. 

1  The  continuance  of  the  tenancy  must  not  he  confounded  with  liability 
on  the  covenants  of  a  lease.  The  original  lessee  remains  bound  by  the 
covenants,  though  he  has  made  a  valid  assignment  of  the  term. 


278  RESTRAINTS  ON  ALIENATION. 


SUMMARY.1 


FORFEITURE    FOR   ALIENATION. 

§  279.  A.  Fee  Simple.  —  An  unqualified  condition  or 
conditional  limitation  on  alienation  either  in  general  or 
in  any  particular  mode,  cannot  be  joined  to  a  fee  simple 
or  to  an  absolute  interest  in  personalty.  §§  13-30,  55- 
56  g. 

A  condition  or  conditional  limitation  on  alienation  to 
certain  specified  persons  can  probably  be  attached  to  a 
fee  simple  or  to  an  absolute  interest  in  personalty ;  but 
how  far  a  condition  or  conditional  limitation  on  alienation 
except  to  certain  specified  persons  can  be  so  attached  is 
doubtful.     §§  31-44. 

A  condition  or  conditional  limitation  on  alienation  of  an 
estate  or  interest  while  contingent  is  good ;  but  [except  in 
the  Province  of  Ontario]  if  a  fee  simple  or  an  absolute 
interest  in  personalty  has  vested,  a  condition  or  conditional 
limitation  against  alienation  attached  to  it  is  void,  however 
limited  in  time.     §§  45-54. 

A  condition  or  conditional  limitation  attached  to  a  fee 
simple  or  an  absolute  interest  in  personalty  to  take  effect 
if  the  owner  does  not  alienate,  e.  g.  if  he  dies  intestate 
without  having  disposed  of  the  estate,  is,  though  without 
sufficient  reason,  held  void.     §§  57-74  g. 

B.  Fee  Tail.  —  A  condition  or  conditional  limitation 
on  alienation  attached  to  an  estate  in  fee  tail  is  good,  but 

1  This  summary  does  not  give  the  statutory  changes. 


SUMMARY.  279 

is  destroyed  by  barring  the  estate,  and  the  barring  of  an 
estate  tail  cannot  be  restrained  by  any  condition  or  condi- 
tional limitation.     §§  75-77- 

C.  Estate  for  Life.  —  A  condition  or  conditional  limi- 
tation on  alienation  is  good  when  attached  to  a  life  estate 
or  interest  in  either  realty  or  personalty.     §§  78-96. 

Exception.  If  the  life  tenant  is  the  settlor,  a  condition 
or  conditional  limitation  is  bad  on  involuntary  alienation; 
how  far  it  is  good  on  voluntary  alienation  is  doubtful. 
§§  90-100. 

D.  Estate  for  Years.  —  A  condition  or  conditional  lim- 
itation on  alienation  attached  to  an  estate  for  years  is  good. 
§§  101-103. 

RESTRAINT    ON  ALIENATION. 

A.  Fee  Simple.  —  Any  provision  restraining  the  alien- 
ation, voluntary  or  involuntary,  of  an  estate  in  fee  simple 
or  an  absolute  interest  in  chattels  real  or  personal,  whether 
legal  or  equitable,  is  void.     §§  105-124. 

Exception  1.  In  Pennsylvania  the  law  is  doubtful. 
§§  124  a- 124  fr. 

Exception  2.  In  Massachusetts  a  provision  that  the 
absolute  present  owner  of  property  shall  not  receive  it  till 
reaching  a  certain  age  is  valid.     §§124  l-\2Ap. 

Exception  3.  Married  women  may  be  restrained  from 
the  voluntary  or  involuntary  alienation  of  their  separate 
estates.     §§  125-131  k. 

B.  Fee  Tail.  —  Any  provision  restraining  the  alienation 
of  an  estate  tail  is  destroyed  by  the  barring  of  the  estate. 
§132. 

Exception.  If  an  equitable  fee  tail,  being  the  separate 
estate  of  a  married  woman,  is  subject  to  a  provision  against 


280  RESTRAINTS  ON  ALIENATION. 

alienation,  the  fee  simple  which  arises  on  the  barring  of  the 
estate  tail  is  subject  to  a  like  provision.     §  l.'5:5. 

( '.  Estate  for  Life.  —  Any  provision  restraining  the 
alienation,  voluntary  or  involuntary,  of  a  life  estate  or  in- 
terest, in  realty  or  personalty,  whether  legal  or  equitable, 
is  void.     §§  134-213,  268-268  6. 

[The  sound  doctrine  on  the  subject  of  the  power  to  alien- 
ate life  interests  and  of  their  liability  for  debts,  may,  it  is 
submitted,  be  stated  in  three  propositions:  (1)  All  rights 
to  enjoy  property,  or  to  have  its  income  paid  to  one,  or  ex- 
pended or  applied  for  one's  benefit,  during  life,  are  alien- 
able and  can  be  taken  for  debts ;  and  if  the  right  to  the 
whole  or  to  any  part  of  the  income  of  a  trust  fund  is  exclu- 
sive, any  provisions  against  anticipation,  or  as  to  the  times 
or  amounts  of  payment  or  the  mode  of  expenditure  or  ap- 
plication, arc  inoperative  as  against  an  assignee  or  creditor. 
(2)  If  the  right  is  not  exclusive,  but  trustees  can  give  the 
use  or  income  to  such  one  or  more  of  several  persons  as 
they  see  lit,  the  trustees  cannot  be  compelled  to  allow  the 
use  or  pay  the  income  to  the  assignee  or  creditor  of  any  par- 
ticular person  ;  but  after  having  notice  of  the  assignment, 
voluntary  or  involuntary,  of  the  interest  of  such  person,  they 
cannot  pay  to  him  or  apply  for  his  benefit  any  part  of  the 
income,  and  if  they  do  so  they  must  account  for  it  to  the 
assignee.  (3)  Although  no  restraint  on  the  alienation  of  a 
life  interest  or  on  its  liability  for  debts  can  be  imposed  for 
the  benefit,  real  or  supposed,  of  the  one  having  the  life  in- 
terest, it  can  be  imposed  for  the  benefit  of  other  persons. 
Thus,  if  one  has  acquired  by  purchase  the  right  to  be  a  life 
member  of  a  club,  the  club  cannot  be  compelled  to  admit 
his  assignee.] 

Exception  1.     In  Pennsylvania  and  Massachusetts  an 


SUMMARY.  281 

equitable  life  interest,  when  the  life  tenant  is  not  the  set- 
tlor, may  be  subjected  to  a  provision  against  alienation. 
§§  214-240  g.  [So  now  also  in  Illinois,  Maine,  Maryland, 
Mississippi,  Vermont,  Missouri,  and  Tennessee,  and  proba- 
bly also  in  Delaware,  Indiana,  and  Virginia.  §§  240  h~ 
249  b.]  In  the  Federal  Courts  the  authorities  are  conflict- 
ing.    §§  250-268  a. 

Exception  2.  Married  women  may  be  restrained  from 
the  alienation,  voluntary  or  involuntary,  of  their  separate 
life  estates  or  interests,  but  in  Pennsylvania  and  Massachu- 
setts women,  married  or  single,  cannot  so  settle  their  own 
property  as  to  preserve  it  from  creditors  during  coverture. 
§§  269-277  a. 

D.  Estate  for  Years.  —  Any  provision  restraining  the 
alienation  of  an  estate  for  years  is  void,  semble.     §  278. 

Exception.  Married  women  can  be  restrained  from  the 
alienation,  voluntary  or  involuntary,  of  estates  for  years 
which  are  their  separate  property.     §  278  a. 


APPENDIX    I. 


DECISIONS   UNDER   STATUTES. 

A.   New  York. 

§  280.  Apart  from  statute,  the  invalidity  of  restraints 
against  alienation  attached  to  equitable  life  interests  has 
been  held  as  strictly  in  New  York  as  anywhere.  See 
§§  180,  181,  ante.  But  the  matter  is  now  entirely  gov- 
erned by  statute,  and  the  modern  New  York  decisions 
throw,  therefore,  no  light  on  the  points  which  have  been 
considered.  As,  however,  those  decisions  have  sometimes 
been  erroneously  referred  to  as  authorities  on  the  general 
question,  and  as  it  may  be  convenient  to  have  them  col- 
lected, the  statutes,  with  the  cases  under  them,  are  here 
given.     [See  16  Abb.  N.  C.  20-42,  note.] 

§  281.  The  sections  of  the  Revised  Statutes  affecting 
the  matter  are  as  follows  :  — 

Part  2,  chapter  1,  treats  of  Real  Property ;  of  this  chap- 
ter, title  2,  art.  2,  contains  the  following  sections. 

"  §  45.  Uses  and  trusts,  except  as  authorized  and  modi- 
fied in  this  article,  are  abolished." 

"  §  55.  Express  trusts  may  be  created  for  any  or  either 
of  the  following  purposes  :  — 

"  1.   To  sell  lands  for  the  benefit  of  creditors. 

"2.  To  sell,  mortgage,  or  lease  lands,  for  the  benefit 
of  legatees,  or  for  the  purpose  of  satisfying  any  charge 
thereon. 


2S4  RESTRAINTS  OX   ALIENATION". 

*'  3.  To  receive  the  rents  and  profits  of  lands,  and  apply 
them  to  the  education  or  support  only1  of  any  person, 
during  the  life  of  such  person,  or  for  any  shorter  term, 
Bubject  to  the  rules  prescribed  in  the  first  article  of  this 
title.2 

"  4.  To  receive  the  rents  and  profits  of  lands,  and  to 
accumulate  the  same,  for  the  purposes  and  within  the 
limits  prescribed  in  the  first  article  of  this  title." 

"  §  5".  Where  a  trust  is  created  to  receive  the  rents 
and  profits  of  lands,  and  no  valid  direction  for  accumula- 
tion is  given,  the  surplus  of  such  rents  and  profits,  beyond 
the  sum  that  may  be  necessary  for  the  education  and  sup- 
port of  the  person  for  whose  benefit  the  trust  is  created, 
shall  be  liable,  in  equity,  to  the  claims  of  the  creditors  of 
such  person,  in  the  same  manner  as  other  personal  property 
which  cannot  be  readied  by  an  execution  at  law."  3 

"  §  63.  Xo  person  beneficially  interested  in  a  trust  for 
the  receipt  of  the  rents  and  profits  of  land  can  assign  or  in 
any  manner  dispose  of  such  interest ; 4  but  the  rights  and 
interest  of  every  person  for  whose  benefit  a  trust  for  the 
payment  of  a  sum  in  gross  is  created  are  assignable."6 

"  §  65.  Where  the  trust  shall  be  expressed  in  the  in- 
strument creating  the  estate,  every  sale,  conveyance,  or 
other  act  of  the  trustees,  in  contravention  of  the  trust, 
shall  be  absolutely  void." 

1  This  was  the  language  of  the  section  as  originally  reported  by  the 
revisers.     For  its  change  by  the  legislature,  see  §  283,  post. 

2  These  rules  do  not  touch  the  present  question. 

8  The  statement  in  Clutc  v.  Bool,  8  Paige,  83,  87,  that  this  section  was 
not  originally  reported  by  the  revisers,  but  was  introduced  by  the  legisla- 
ture, is  incorrect.     3  N.  Y.  Rev.  Sts.  (2d  ed.)  579. 

4  [See  Estate  of  Hoy t,  12  N.  Y.  Civ.  rroc.  208.] 

*  [See  Radley  v.  Kuhn,  97  N.  Y.  26.] 


APPENDIX  I.  285 

In  Part  3,  chapter  1,  title  2,  art.  2,  on  the  general 
powers  of  the  Court  of  Chancery,  are  the  following 
sections. 

"  §  38.  Whenever  an  execution  against  the  property  of 
a  defendant  shall  have  been  issued  on  a  judgment  at  law, 
and  shall  have  been  returned  unsatisfied,  in  whole  or  in 
part,  the  party  suing  out  such  execution  may  file  a  bill  in 
chancery  against  such  defendant  and  any  other  person,  to 
compel  the  discovery  of  any  property  or  thing  in  action  due 
to  him,  or  held  in  trust  for  him  ;  and  to  prevent  the  trans- 
fer of  any  such  property,  money,  or  thing  in  action,  or  the 
payment  or  delivery  thereof  to  the  defendant  [except 
where  such  trust  has  been  created  by,  or  the  fund  so  held 
in  trust  has  proceeded  from,  some  person  other  than  the 
defendant  himself].1 

"  §  39.  The  court  shall  have  power  to  compel  such  dis- 
covery, and  to  prevent  such  transfer,  payment,  or  delivery, 
and  to  decree  satisfaction  of  the  sum  remaining  due  on 
such  judgment,  out  of  any  personal  property,  money,  or 
things  in  action,  belonging  to  the  defendant,  or  held  in 
trust  for  him  [with  the  exception  above  stated],1  which 
shall  be  discovered  by  the  proceedings  in  chancery, 
whether  the  same  were  originally  liable  to  be  taken  in 
execution  at  law  or  not." 

[These  last  two  sections  of  the  Revised  Statutes  were 
repealed  in  1880.  Since  that  time  the  law  on  the  subject 
in  question  has  been  contained  in  the  Code  of  Civil  Pro- 
cedure of  1880.  Chap.  15,  title  4,  art.  1,  is  on  "Judg- 
ment Creditor's  Action."  It  provides  for  a  judgment 
creditor  with  an  unsatisfied  execution  obtaining  satisfaction 

1  These  clauses  in  brackets  were  not  in  the  original  revision,  but  were 
added  by  the  legislature.     3  N.  Y.  Rev.  Sts.  (2d  ed.)  609. 


28G  RESTRAINTS   ON    ALIENATION. 

of  his  debt  in  much  the  same  manner  as  §§  38,  39,  supra. 
§  1879  of  the  Code  declares  that  the  article  does  not 
"  authorize  the  discovery  or  seizure  of,  or  other  interference 
with,  .  .  .  any  money,  thing  in  action,  or  other  property, 
held  in  trust  for  a  judgment  debtor,  where  the  trust  has 
been  created  by,  or  the  fund  so  held  in  trust  has  pro- 
ceeded from,  a  person  other  than  the  judgment  debtor." 
Chap.  17,  title  12,  art.  1,  of  the  Code,  "On  Supplemen- 
tary Proceedings,"  declares,  in  §  2463,  that  the  article  does 
not  "  authorize,  &c,"  repeating  verbatim  the  language  of 
§  1879,  supra.~\ 

$  282.  This  crude  and  reckless  legislation  seems  to  have 
been  as  unsuccessful  in  practice  as  it  deserved  to  be.  It 
has  led  to  great  litigation,  and  there  has  been  the  utmost 
difference  of  opinion  on  points  which  ought  to  have  been 
put  beyond  doubt.  The  revisers  seem  to  have  looked  at 
the  subject  of  trusts  solely  from  a  conveyancer's  point  of 
view,  and  with  the  object  of  simplifying  titles.  This  is 
shown  by  the  (act  that  they  have  made  no  provisions  with 
regard  to  personalty  similar  to  those  of  Part  2,  c.  1,  tit.  2, 
art.  2.  Their  intention  evidently  was  to  pass  the  legal  title 
to  every  one  except  to  those  who  were  legally  or  naturally 
incapable  of  managing  property.  In  their  notes  to  article  2 
they  say  :  ''An  assignment  for  the  benefit  of  creditors  would 
in  most  cases  be  entirely  defeated  if  the  title  were  to  re- 
main in  the  debtor,  and  where  the  trust  is  to  receive  the 
rents  and  profits  of  lands,  and  to  apply  them  to  the  educa- 
tion of  a  minor,  the  separate  use  of  a  married  woman,  or 
the  support  of  a  lunatic  or  spendthrift,  (the  general  objects 
of  trusts  of  this  description,)  the  utility  of  vesting  the  title 
and  possession  in  the  trustees  is  sufficiently  apparent." 
3  X.  Y.  Rev.  Sts.  (2d  ed.)  585.     In  fact,  in  order  to  sim- 


APPENDIX   I.  287 

plify  conveyancing,  and  not  warned  by  the  history  of  the 
Statute  of  Uses,  the  revisers  determined  to  destroy  trusts 
in  land  (and  ill  land  only)  by  not  allowing  any  one  to 
enjoy  any  interest  in  land  without  having  the  legal  title, 
except  in  the  case  of  those  persons  who  were  not  legally 
fit  to  have  it ;  and  to  prevent  any  difficulty  arising  in  the 
transfer  of  land  in  those  cases  where  the  legal  title  was 
separated  from  the  equitable,  they  provided  that  in  such 
cases  the  land  could  not  be  transferred  at  all.  §§  63,  Go.1 
§  283.  To  prevent  abuse,  however,  they  provided  that 
any  surplus  of  rents  and  profits,  not  needed  for  education 
and  support,  should  be  liable  in  equity  to  the  debts  of  the 
cestui  que  trust;  but,  apparently  forgetting  this,  the  legis- 
lature, when  they  came  to  give  remedies  in  equity,  provided 
that  trust  property  might  be  taken  in  equity  for  debts,  "  ex- 
cept where  such  trust  has  been  created  by,  or  the  fund  so 
held  in  trust  has  proceeded  from,  some  person  other  than 
the  defendant  himself."  (Part  3,  c.  1,  tit.  2,  art.  2,  §  38.) 
Although  this  last  section  contradicts  the  provisions  of 
Part  2,  c.  1,  tit.  2,  art.  2,  these  latter  had  a  certain  consist- 
ency among  themselves.  But  this  was  soon  destroyed.  In 
the  third  clause  of  §  55  the  words  "  or  support  only  "  were 
stricken  out,  and  "  and  support  or  either  "  were  inserted  by 
the  legislature.  And  in  1830  the  revisers  recommended, 
and  the  legislature  adopted,  an  amendment,  by  which  the 
words  ''  education  and  support  or  either "  were  stricken 

1  A  power  authorizing,  for  the  purpose  of  changing  the  investment,  the 
sale  of  land  held  in  trust,  is  held,  however,  not  to  be  in  violation  of  §§  63, 
65.  Belmont  v.  O'Brien,  12  N.  Y.  394.  See  Roosevelt  v.  Roosevelt,  6  Hun, 
31  ;  s.  c.  64  N.  Y.  651;  Hawley  v.  James,  5  Paige,  318,  444  ;  Marvin  v. 
Smith,  56  Barb.  600,  605  ;  Heermans  v.  Robertson,  5  T.  &  C.  596  ;  s.  c. 
64  N.  Y.  332  ;  Fellows  v.  Heermans,  4  Lans.  230  j  Cruger  v.  Jones,  18 
Barb.  467. 


288  RESTRAINTS  ON    ALIENATION. 

out,  and  the  word  "  use "  inserted.  3  N.  Y.  Rev.  Sts. 
(iNl  ed. )  579.  So  that  the  elause  now  reads,  "To  receive 
the  rents  and  profits  of  lands,  and  apply  them  to  the  use 
of  any  person,"  &c.  No  corresponding  change  was  made 
in  the  other  sections,  and  thus  equitable  interests  were 
allowed  to  be  created  for  persons  sui  juris  and  competent, 
and  yet  they  were  not  authorized  to  alienate  them  (always 
provided  they  were  realty). 

§  284.  In  this  condition  the  statutes  were  turned  over 
to  the  courts  to  deal  with  them  as  best  they  could.  See 
Gott  v.  Cook,  7  Paige,  521,  536 ;  Coster  v.  Lorillard,  14 
Wend.  265,  321,  330,  332,  352,  377 ;  Hawley  v.  James,  16 
Wend.  61,  147,  148;  Downing  v.  Marshall,  2:5  X.  Y.  366, 
378,  379;  Graff  v.  Bonnett,  31  N.  Y.  9,  19-21,  24-31  ; 
Wetmore  v.  Truslow,  51  N.  Y.  338,  342;  Rome  Exchange 
Bank  v.  Eames,  4  Abb.  Ct.  App.  88,  99 ;  [Salsbury  v. 
Parsons,  36  Hun,  12;  Cochrane  v.  Schell,  140  X.  Y.  516, 
532.] 

§  285.  A  question  rose  early  into  great  prominence.  By 
the  provision  that  an  express  trust  might  be  created  to  re- 
ceive the  rents  and  profits  of  lands,  and  apply  them  to  the 
use  of  any  person,  was  it  meant  to  allow  trusts  only  when 
the  trustees  had  to  apply  the  money,  or  was  it  meant  to 
allow  them  when  the  trustees  had  merely  to  pay  the  money 
over?  The  latter  interpretation  was  certainly  inconsistent 
with  the  scheme  as  originally  framed,  and  was  letting  in  by 
a  side  door  many  of  those  trusts  which  had  been  so  osten- 
tatiously thrust  forth  from  the  front ;  but  after  great  con- 
flict it  finally  prevailed.  Leggett  v.  Perkins,  2  Comst.  297. 
[  Moore  v.  Hegeman,  72  N.  Y.  376.]  See  Noges  v.  Blake- 
man,  3  Sandf.  S.  C.  531,  541 ;  s.  c.  6  N.  Y.  567  ;  Camp- 
bell v.  Low,  9  Barb.  585 ;   Tobias  v.  Ketchum,  32  N.  Y. 


APPENDIX  I.  289 

319,  330;  Jarvis  v.  Babcock,  5  Barb.  139;  [Cochrane  v. 
Schell,  140  N.  Y.  516,  532.]  For  earlier  eases  see  Gott  v. 
Cook,  7  Paige,  521 ;  Clute  v.  Bool,  8  Paige,  83  ;  Van  Epps 
v.  Van  Epps,  9  Paige,  237  ;  Rogers  v.  Ludlow,  3  Sandf.  Ch. 
104  ;  Coster  v.  Lorillard,  14  Wend.  265  ;  Hawley  v.  James, 
16  Wend.  61.  [The  trust  cannot  be  properly  terminated 
by  the  trustee  paying  the  whole  fund  to  the  only  cestuis 
que  trust.  Lent  v.  Howard,  89  N.  Y.  169.  Cf.  Radley  v. 
Kuhn,  97  N.  Y.  26,  32.] 

§  286.  As  has  been  said,  the  revisers,  having  in  view 
only  simplifying  the  transfer  of  land,  did  not  limit  the  trusts 
which  might  be  created  in  personal  property,  thus  making 
a  new  distinction  between  real  and  personal  estate,  when 
the  distinctions  which  already  prevail  are  among  the  chief 
opprobria  of  the  common  law,  and  when  the  whole  course 
of  civilization  and  of  the  natural  growth  of  the  law  has 
been  to  minimize  these  distinctions.  It  has  never  been 
disputed  in  New  York  that,  notwithstanding  the  Revised 
Statutes,  trusts  of  personalty  may  be  created  for  any  pur- 
pose which  was  lawful  before  the  statute.  See  Gott  v. 
Cook,  7  Paige,  521,  534;  Kane  v.  Gott,  24  Wend.  641,  661 ; 
Leggett  v.  Perkins,  2  Comst.  297,  313;  De  Peyster  v.  ( 'len- 
dining,  8  Paige,  295,  305  ;  Everitt  v.  Everitt,  29  N.  Y.  39, 
71  ;  Vail  v.  Vail,  7  Barb.  226,  238 ;  Broion  v.  Harris,  25 
Barb.  134  ;  Hagerty  v.  Hagerty,  9  Hun,  175  ;  [Gilman  v. 
McArdle,  99  N.  Y.  451 ;  Cochrane  v.  Schell,  140  N.  Y.  516, 
534.  Leaseholds,  however,  were  held  in  Bennett  v.  Rosen- 
thal, 11  Daly,  91,  94,  to  come  within  the  provisions  of  the 
Revised  Statutes.]  But  is  the  clause  of  the  Revised  Stat- 
utes, §  63,  which  declares  trusts  of  real  estate  inalienable, 
to.be  extended  to  trusts  of  personalty?  The  argument  for 
its  extension  is  to  be  found  in  Rev.  Sts.,  Part  2,  c.  4,  title  4, 

19 


290  RESTRAINTS  ON   ALIENATION. 

§§  12.  §1  provides  that  the  ownership  of  personal  prop- 
erty shall  not  be  suspended  by  any  limitation  or  condition 
whatever  for  more  than  two  lives.  §  2  provides  that,  "in 
all  other  respects,  limitations  of  future  or  contingent  inter- 
ests in  personal  property  shall  be  subject  to  the  rules  pre- 
scribed in  the  first  chapter  of  this  act  in  relation  to  future 
estates  in  lands."  It  is  clearly  shown  by  Cowen,  J.,  in 
Kane  v.  Gott,  24  Wend.  641,  and  Denio,  C.  J.,  in  his  dis- 
senting opinion  in  Graff  v.  Bonnett,  31  N.  Y.  9,  19-25,  that 
this  clause  applies  only  to  the  provisions  concerning  future 
interests  in  the  first  chapter,  and  that  trust  interests  to 
commence  immediately  on  the  execution  of  the  trust  deed 
or  the  death  of  the  testator  are  not  future  interests.  To 
the  same  effect  are  Grout  v.  Van  Schoonhoven,  1  Sandf.  Ch. 
336  :  Arnold  v.  Gilbert,  5  Barb.  190,  198;  Cruger  v.Cru- 
ger,  Id.  225,  266  ;  Vail  v.  Vail,  7  Barb.  22(5,  238 ;  Brown 
v.  Harris,  25  Barb.  134;  Titus  v.  Weeks,  37  Barb.  136, 
149.  Chancellor  Walworth,  however,  in  several  decisions, 
held  that  the  Revised  Statutes  made  trusts  of  personalty 
inalienable.  Hallett  v.  Thompson,  5  Paige,  583.  Hone  v. 
Van  Schaick,  7  Paige  221,  233,  234.  Clute  v.  Bool,  8 
Paige,  83.  Degraw  v.  Clason,  11  Paige,  136.  And  the 
weight  of  authority,  though  not  of  reason,  is  now  the  same 
way.  Arnold  v.  Gilbert,  3  Sandf.  Ch.  531,  554,  555. 
Rider  v.  Mason,  4  Sandf.  Ch.  351.  Graff  v.  Bonnett,  2 
Robertson,  54  ;  s.  0.  31  N.  Y.  9,  13.  Campbell  v.  Foster, 
35  N.  Y.  361,  371.  Roosevelt  v.  Roosevelt,  6  Hun,  31  ; 
s.  c.  64  N.  Y.  651.  Scott  v.  Nevius,  6  Duer,  672.  And 
see  Hone  v.  Von  Schaick,  20  Wend.  564 ;  Havens  v. 
Healy,  15  Barb.  296,  301  ;  Williams  v.  Thorn,  70  N.  Y. 
270,  273. 

§  287-   N.  Y.  Rev.  Sts.,  Part  2,  c.  1,  tit.  2,  art.  2,  §  57, 


APrENDIX  I.  291 

provide  that  the  surplus  of  rents  and  profits  of  land  held 
in  trust  beyond  what  is  necessary  for  the  education  and 
support  of  the  cestui  que  trust  shall  be  liable,  in  equity,  to 
his  creditors.  Part  3,  c.  1,  tit.  2,  art.  2,  §§  38,  39,  provide 
that,  when  an  execution  is  returned  unsatisfied,  the  creditor 
may  bring  a  bill  to  have  his  d.bt  satisfied  out  of  any  prop- 
erty held  in  trust  for  the  debtor,  except  where  the  trust  has 
been  created  by  some  person  other  than  the  debtor.  See 
§  281,  ante.  Three  modes  have  been  suggested  of  dealing 
with  these  contradictory  provisions. 

§  288.  First  That  §§  38,  39,  forbid  only  the  taking  of 
the  principal  of  trust  funds  created  for  a  debtor,  but  leave  it 
open  to  take  the  surplus  of  the  income.  This  view  seems 
to  be  confined  to  Chief  Judge  Denio  and  Judge  Johnson. 
The  former  states  and  defends  it  in  his  dissenting  opinion 
in  Graff  v.  Bonnett,  31  N.  Y.  9,  25-30. 

§  289.  Second  That  the  exception  in  §§  38,  39,  practi- 
cally leaves  the  creditor  without  a  remedy.  This  was  said 
by  Wright,  J.,  to  be  his  opinion,  in  Campbell  v.  Foster,  35 
N.  Y.  361,  3/3.  See  Stewart  v.  McMartin,  5  Barb.  438, 
414 ;  Locke  v.  Mabbett,  2  Keyes,  457,  460 ;  s.  c.  3  Abb. 
Ct.  App.  68;  Parker  v.  Harrison,  10  Jones  &  Sp.  150. 
The  opinion  in  Campbell  v.  Foster  Avas  followed,  appar- 
ently with  reluctance,  in  Hann  v.  Van  Voorhis,  5  Hun,  425  ; 
and  see  accordingly  Miller  v.  Miller,  7  Hun,  208.  It  should 
be  observed  that  the  case  of  Campbell  v.  Foster  is  one  of 
those  relied  on  by  Miller,  J.,  in  his  opinion  in  Nichols  v. 
Eaton,  91  U.  S.  716,  729. 

§  290.  Third.  But  this  latter  doctrine  is  now  distinctly 
overruled,  and  it  is  settled  that  the  surplus  income, of  a 
trust  fund  not  necessary  for  the  support  and  maintenance 
of  the  cestui  que  trust  can  be  reached  by  a  creditors  bill. 


292  RESTRAINTS  ON  ALIENATION. 

The  case  of  Williams  v.  Thorn,  70  X.  Y.  270,  (followed  ia 
McEvoy  v.  Appleby,  27  Hun,  44,)  is  a  unanimous  decision 
of  the  Court  of  Appeals,  that  in  a  proceeding  like  a  credi- 
tor's lull  against  ;i  trust  fund,  consisting  of  both  realty  and 
personalty,  the  surplus  income  beyond  what  is  necessary  for 
the  suitable  support  of  the  debtor  and  those  dependent  on 
him,  is  applicable  to  the  payment  of  his  creditors  ;  and  that 
this  is  true  not  only  of  the  accrued  income,  but  —  overrul- 
ing on  this  point  ( 'lute  v.  Bool,  8  Paige,  83  ;  and  see  Bryan 
v.  Knickerbocker,  1  Barb.  Ch.  109,427;  Graff  v.' Bonnett, 
2  Robertson,  54 ;  Sillick  v.  Mason,  2  Barb.  Ch.  70,  82 ; 
Scott  v.  Newus,Q  Duer,  072  —  that  the  accruing  income 
will  be  ordered  applied  in  like  manner.  [See  Williams  v. 
Thorn,  81  N.  Y.  381.]  The  only  question  left  open  is 
whether  the  whole  of  the  personalty  cannot  be  reached  by 
the  creditors. 

§  291.  That  such  surplus  can  be  reached  by  creditors 
has  also  been  held  in  Sillick  v.  Mason,  2  Barb.  Ch.  79 ; 
Rider  v.  Mason,  4  Sandf.  Ch.  351;  Miller  v.  Miller,  1 
Abb.  N.  C.  30;  [Tolles  v.  Wood,  99  N.  Y.  GIG;]  and  has 
been  said  or  assumed  in  many  cases;  e.  g.  Hallett  v. 
Thompson,  5  Paige,  58;} ;  Clute  v.  Bool,  8  Paige,  83  ;  De- 
graw  v.  Clason,  11  Paige,  136;  L'Amoureux  v.  VanRens- 
selaer,  1  Barb.  Ch.  34;  Rogers  v.  Ludlow,  3  Sandf.  Ch. 
104;  Craig  v.  Hone,  2  Edw.  Ch.  370,  554,  570;  Bram- 
hall  v.  Ferris,  14  X.  V.  11,  46;  Graff  v.  Bonnett,  2  Rob- 
ertson, 5  I ;  s.  c.  31  N.  Y.  9  ;  Afoyes  v.  Blakeman,  3  Sandf. 
S.  C.  531  ;  s.  c.  G  N.  Y.  567;  Cruger  v.  .A//».v,  18  Barb. 
407;  Gene*  v.  Beekman,  45  Barb.  382;  ,W/  v.Nevius,  6 
Duey,  672;  Moulton  \.  De  ma  Carty,  6  Robertson,  533; 
<,V/,r/  v.  Foster,  18  How.  Pr.  50.  [See  Sargent  v.  Zten- 
//'//;  3  How.  Pr.  N.  S.  515.] 


APPEXDIX  I.  293 

§  292.  Although  this  surplus  can  be  reached  by  credi- 
tors, the  cestui  que  trust  cannot  alienate  it  by  any  voluntary 
conveyance;  [Tolles  v.  Wood,  99  N.  Y.  616  ;  and  see  Es- 
tate  of  Hoyt,  12  N.  Y.  Civ.  Proc.  208  ;]  and  therefore  prop- 
erty held  in  trust  for  the  separate  use  of  a  married  woman 
is  not  liable  for  her  debts,  because  a  married  woman's 
debts  can  affect  her  separate  estate  only  by  way  of  charge. 
L'Amoureux  v.  Van  Rensselaer,  1  Barb.  Ch.  34.  Rogers 
v.  Ludlow,  3  Sandf.  Ch.  104.  Noyes  v.  Blakeman,  3  Sandf. 
S.  C  531  ;  s.  c.  6  N.  Y.  56/. 

§  293.  This  surplus  can  be  reached  only  by  a  proceeding 
in  the  nature  of  a  creditor's  bill,  and  not  by  proceedings 
supplementary  to  execution,  if  the  income  has  not  yet  ac- 
crued ;  Scott  v.  Nevlus,  6  Duer,  6/2 ;  Campbell  v.  Foster, 
16  How.  Pr.  275  ;  s.  c.  35  N.  Y.  361,  3/3;  or  even  if  it 
has  accrued  ;  Locke  v.  Mabbett,  2  Keyes,  457 ;  s.  c.  3  Abb. 
Ct.  App.  68 ;  Genet  v.  Foster,  18  How.  Pr.  50 ;  [McEwen 
v.  Brewster,  17  Hun,  223.]  See  Graff  v.  Bonnett,  2  Rob- 
ertson, 54 ;  s.  c.  31  X.  Y.  9 ;  [De  Camp  v.  Dempsey,  10 
N.  Y.  Civ.  Proc.  210.] 

§  294.  To  determine  what  is  necessary  for  the  education 
and  support  of  a  cestui  que  trust,  and  what  standard  of  ex- 
pense is  to  be  taken,  is  obviously  a  difficult  task  for  a  court 
of  equity.  In  what  condition  of  life  is  a  man  entitled  to 
be  supported  as  against  his  creditors  ?  See  Clute  v.  Bool, 
8  Paige,  83,  87 ;  Sillicfc  v.  Mason,  2  Barb.  Ch.  79 ;  Genet 
v.  Beehnan,  45  Barb.  382 ;  Moulton  v.  De  ma  Carty,  6 
Robertson,  533  ;  Scott  v.  Nevius,  6  Duer,  672,  677  ;  Camp- 
bell v.  Foster,  35  N.  Y.  361,  373. 

§  294  a.  [In  Tolles  v.  Wood,  99  N.  Y.  616,  a  judgment 
creditor  brought  a  suit  against  trustees  under  a  will  who 
held  property  in  trust  to  pay  the  income  to  W.,  to  reach 


-    i  RESTRAINTS  ON  ALIENATION. 

the  surplus  income  in  their  hands.  The  net  income  since 
the  beginning  of  the  suit,  about  ten  months,  was  $4,159.86  ; 
of  this  the  trustees  had  paid  the  beneficiary  $1,375,  and  at 
his  request  had  paid  $1,909.80  interest  upon  a  debt  due 
from  him,  and  also  $708.82  premiums  upon  policies  of  life 
insurance  given  by  him  as  security  for  debts.  The  Court 
as  to  the  amount  of  these  last  two  sums  said  that  "actual 
experiment  had  demonstrated  that  it  was  not  needed"  for 
VV.'s  support,  and  that  the  plaintiff  was  entitled  to  judg- 
ment fur  it.] 

^  294  6.  [In  Kilroy  v.  Wood,  42  Hun,  636,  another  judg- 
ment creditor  proceeded  against  the  same  defendants.  The 
opinion  says:  \V.  "  is,  as  claimed  in  the  defendants'  points, 
a  gentleman  of  high  social  standing,  whose  associations  arc 
chiefly  with  men  of  leisure,  and  is  connected  with  a  num- 
ber of  clubs,  with  the  usages  and  customs  of  which  he 
seems  to  be  in  harmony  both  in  practice  and  expenditure, 
and  it  is  insisted  on  his  behalf  that  his  income  is  not  more 
than  sufficient  to  maintain  his  position  according  to  his 
education,  habits,  and  associations.  And  this  maybe  so, 
yet  it  would  seem  that  evidence  might  have  been  adduced 
which  would  establish  his  ability  to  live  upon  a  smaller 
sum  than  the  whole  income,  and  thus  relieve  himself  from 
the  burden  of  a  debt  which  seems  to  have  been  justly  con- 
tracted.'  Hut  the  Court  held  that  the  plaintiff  had  shown 
no  sufficient  evidence  of  this.] 

§  :_>'.)  1  r.  [Stow  v.  ('ha phi,  4  N.  Y.  Supp.  490  (1889). 
Suit  to  enforce  judgments  for  $60,000  against  Howell 
Osborne,  to  reach  the  surplus  income  in  the  hands  of  the 
trustees  under  his  father's  will.  This  will  gave  the  trus- 
tees $500,000  in  trust  to  apply  the  income  to  the  use  of 
Howell  Osborne  for  life,  and  on  his  death  to  convey  the 


APPEXDIX  I.  295 

principal  to  liis  next  of  kin.  The  plaintiff  alleged  that  the 
annual  income  was  about  $25,000  ;  that  the  debtor,  as 
the  plaintiff  was  informed  and  believed,  was  unmarried 
and  had  no  children,  house,  or  other  establishment  to 
maintain ;  and  that  $2,500  would  be  a  reasonable,  fair, 
ample,  and  sufficient  income  for  him.  The  Court  held 
that  there  had  been  no  proper  service  on  the  parties,  but 
continued  thus :  "  There  is  another  ground  upon  which 
the  Court  was  also  justified  in  denying  the  motion,  and 
that  is  that  there  is  no  proof  whatever  contained  in  these 
papers  as  to  what  would  be  a  sufficient  income  for  the  de- 
fendant Osborne.  ...  He  is  entitled  to  have  so  much  of 
said  fund  as  may  be  necessary  to  support  him  in  the  style 
in  which  he  had  been  accustomed  to  live,  and  in  which  he 
had  been  brought  up  by  his  father,  and  for  the  maintenance 
of  which  this  provision  was  made  in  the  will  of  the  father. 
It  is  not  for  the  creditor  to  say  that  his  debtor  should  live 
on  two  dollars  a  day  or  one  dollar ;  that  such  a  sum  will 
keep  the  debtor  from  starvation,  or  that  it  will  prevent  his 
being  clothed  in  rags.  There  is  no  such  rule  in  cases  of 
this  description.  The  testator  has  the  right  to  do  as  he 
pleases  with  his  money,  and  if  he  desires  to  make  provis- 
ion for  the  support  of  a  profligate  son  in  such  a  manner 
that  he  cannot  reach  or  anticipate  this  fund,  or  the  income 
thereof,  he  has  the  right  to  do  so,  and  he  has  the  right  to 
afford  him  the  means  of  living  in  the  manner  in  which  he 
has  brought  him  up,  and  to  which  he  has  been  accustomed, 
and  the  creditor  can  claim  only  that  which  is  in  excess  of 
this  amount ;  and  that  such  excess  exists  must  be  estab- 
lished by  allegations  of  fact."  The  Court  held  that  there 
was  no  sufficient  evidence  of  this.  See  also  Estate  of 
Hoi/t,  12  X.  Y.  Civ.  Proc.  208,  220.] 


296  RESTRAINTS  OX   ALIENATION. 

§  294d.  [Card  v.  Meincke,  72  Hun,  299.  Suit  on  a 
judgment  for  $163.85  against  .Mary  H.  Meincke,  to  reach 
the  surplus  income  of  a  fund  yielding  $2,186.96  annually. 
A  witness  offered  by  the  plaintiff  testified  that  he  supported 
a  family  of  five  persons  and  had  two  servants,  in  Brooklyn, 
where  the  defendant  resided,  for  81,400  a  year.  The  Su- 
preme Court  dismissed  the  suit.] 

^  l';>:>.  Whether  an  annuity  payable  out  of  rents  and 
profits  is  alienable  and  liable  for  debts,  or  whether  it  is 
inalienable  and  not  liable  for  debts,  is  left  very  doubtful 
on  the  authorities.  In  Hawley  v.  James,  10  Wend.  Gl, 
the  matter  was  much  discussed  ;  but  the  result  is  not  clear. 
In  the  same  case,  before  Walworth,  C,  5  Paige,  318,  401, 
and  in  (Jolt  v.  Cook,  7  Paige,  521,  535,  the  Chancellor 
seems  to  have  thought  that  an  annuity  was  alienable  ;  but 
in  ('lute  v.  Bool,  8  Paige,  83,  80,  he  says  that,  since  the 
decision  of  the  Court  of  Errors  in  Hawley  v.  James,  he 
concludes  he  must  have  been  wrong.  In  Degrawv.Cla- 
son,  11  Paige,  130,  he  held  that  an  annuity  charged  on 
realty  and  personalty  was  liable  for  debts  ;  [followed  in  Gif- 
ford  v.  Rising,  51  Hun,  1  ;  s.  c.  55  Hun,  01.]  In  Rider 
v.  Mason,  4  Sandf.  Ch.  351,  the  Yice-Chanccllor  seems  to 
have  thought  that  creditors  could  reach  so  much  of  an  an- 
nuity (and  only  so  much)  as  was  not  needed  for  support; 
and  a  like  decision  was  made  in  Stewart  v.  McMartin,  5 
Barb.  438,  444,  445,  an  annuity  being  thought  to  be  in- 
alienable under  the  case  of  Hawley  v.  James.  On  the 
other  hand,  in  Lang  v.  Ropke,  5  Sandf.  S.  C.  303,  it  was 
held,  on  the  strength  of  Hawley  v.  James,  that  an  annuity 
was  alienable.  In  Griffen  v.  Ford,  1  Bosw.  123,  a  testator 
gave  realty  and  personalty  to  trustees,  "  to  take,  appropri- 
ate, and  apply  so  much  thereof  as  shall  be  necessary  and 


APPENDIX  I.  297 

proper  for  and  towards  the  suitable  support  and  comfort- 
able maintenance  of  my  wife."  It  was  held  that  the  wife's 
interest  was  in  its  nature  an  annuity,  and  therefore  alien- 
able. If  this  be  law,  it  will  not  be  difficult  to  evade  the 
provision  against  the  alienation  of  trust  estates ;  and  the 
case  perhaps  shows  the  fallacy  of  attempting  to  distinguish 
between  the  payment  of  rents  and  profits,  and  the  payment 
of  an  annuity  out  of  rents  and  profits  ;  and  that  under  the 
Revised  Statutes  both  of  such  interests  must  be  regarded  as 
inalienable,  [and  so  it  has  been  at  last  ruled  by  the  Court 
of  Appeals  in  Cochrane  v.  Schell,  140  X.  Y.  516.  See 
also  Chaplin,  Susp.  of  Al.  §§  233  et  seqq.;  and  Bolles, 
Susp.  of  Al.  §§  36,  3/]. 

B.     Other  States. 

§  296.  Besides  [Illinois,  §  124  r,  ante,]  New  Jersey, 
§§  191,  192,  ante,  and  Tennessee,  §§  240  £-240  x,  ante, 
several  States  have  copied  in  whole  or  in  part  the  legisla- 
tion of  New  York;  e.  g.  California,  Civil  Code  (18/2), 
§§  857,  859,  867,  as  amended  in  1874  ;  [Indiana,  Rev.  Sts. 
of  1881,  §  2972  ;]  Kansas,  2  Gen.  Sts.  of  1889,  §  7162; 
Michigan,  2  Comp.  Laws  (1882),  §§  5573,  5575,  5581, 
6614,  6615;  Minnesota,  Rev.  Sts.  (1866),  c.  43,  §§  11 
(amended  St.  1875,  c.  53),  13,  19 ;  [North  and  South 
Dakota,  Dak.  Comp.  Laws  (1887),  §§  2798,  2800,  2808 ;] 
Wisconsin,  Rev.  Sts.  (1878),  §§  2081  (as  amended  by  St. 
of  1883,  c.  290),  2083,  2089,  3029.  [See  also  the  Statutes 
of  the  Territory  of  Oklahoma  (1893),  §§  3762,  3764,  3771. 
There  have  been  a  few  cases  under  these  statutes.  Locke 
v.  Barbour,  62  Ind.  577.  Collier  v.  Blake,  14  Kan.  250. 
Cummings  v.  Corey,  58  Mich.  494.     Arzbacher  v.  Mayer, 


298  RESTRAINTS  ON    ALIENATION. 

53  Wis.  380.     Sumner  v.  Newton,  01  Wis.  210,  §  194  6, 
ante.     Lamberton  v.  Pereles,  !!7  Wis.  1 1!>,  £  194  a,  arate.] 

Cf.  fli .'/'/•  v.  Clifford,  .">  Color.  108. 


APPENDIX     II. 

CASKS  DECIDED  TOO  LATH    FOB   INSERTION  IN  THE  TEXT. 

§  290  a.  [Ernst  v.  Shinkle,  !).">  Ky.  00!!,  is  an  additional 
authority  that  an  inhibition  to  sell  land  devised  is  void. 
See  also  Meek  v.  Briggs,  87  Iowa,  010.  In  this  latter  ease 
land  and  money  were  devised  and  bequeathed  to  13.,  and 
trustees  were  appointed  to  receive,  manage,  and  control 
the  property  devised,  with  full  power  to  take  possession,  to 
collect  the  rents  and  invest  the  money,  applying  the  income 
to  the  support,  comfort,  and  education  of  li.  ;  the  trust  to 
continue  until,  in  the  judgment  of  the  trustees,  I>.  should 
become  fully  competent  and  worthy  to  be  intrusted  with 
the  sole  care  and  power  of  control  of  the  property,  or  until 
B.  should  be  married  to  some  competent  or  worthy  man. 
In  cither  case,  when  they  were  satisfied  that  the  property 
would  be  safely  cared  for,  they  might  surrender  it  to  !>., 
and  the  title  should  then  vest  absolutely  in  her.  The  Court 
held  that  B.  had  an  equitable  fee,  which  could  not  be 
reached  by  a  creditor  of  B.  on  garnishee  process  against 
the  trustees,  which  is  very  likely  correct.  The  language  of 
the  Court,  however,  seems  to  imply  that  a  creditor  could 
not  reach  the  fund  in  equity.     This  is  clearly  wrong.] 

§  290ft.  [In  Marston  v.  Carter,  li'  X.  II.  159,  §  139, 
ante,  a  legal  life  interest  in  furniture  was  held  not  to  be 


APPENDIX   II.  299 

attachable  for  the  debts  of  the  life  tenant ;  this  was  for  the 
sake  of  the  remaindermen.  In  Lee  v.  Enos,  97  Mich.  276, 
a  testator  devised  land  to  his  two  sons  for  their  lives,  "  sub- 
ject to  the  conditions  hereinafter  mentioned,"  and  he  di- 
rected them  to  allow  his  widow  "  the  use  and  occupancy 
of  our  present  dwelling-house,  yard,  and  garden,  and  keep 
for  her  use  a  good,  safe,  and  substantial  horse,  harness, 
buggy,  and  cutter  for  her  use,  and  give  her  of  the  produce 
of  said  farm  all  she  may  require  for  her  maintenance  and 
support."  Both  sons  abandoned  the  land,  and  refused  to 
furnish  anything  further  for  the  support  of  the  widow. 
The  Court  held  that  the  life  estate  of  the  sons  in  the  land 
could  not  be  taken  on  execution  against  them.  See 
§  172,  ante.'] 

§  298  c.  [That  a  direction  to  accumulate  the  income  of 
a  vested  fund  given  to  a  charity  is  wholly  void,  has  now 
been  settled  in  England  in  the  most  authoritative  manner. 
Harbin  v.  Masterman,  [1894]  2  Ch.  184,  affirmed  in  the 
House  of  Lords  sub  nom.  Wharton  v.  Masterman,  [1895] 
A.  C.  182.  In  other  words,  the  doctrine  of  Saunders  v. 
Van  tier  is  as  applicable  to  a  charity  as  to  an  individual. 
But  see  Woodruff  v.  Marsh,  63  Conn.  125,  137,  where  the 
accumulation  of  $10,000  out  of  the  income  of  a  fund  of 
8400,000,  to  continue  for  a  hundred  years,  was  declared 
to  be  good  ;  and  also  the  case  of  St.  Paul's  Church  v. 
Attorney  General,  decided  by  the  Supreme  Judicial  Court 
of  Massachusetts,  in  1895,  but  not  yet  reported.] 


INDEX. 


THE    REFERENCES   ARE    TO   THE    SECTIONS. 


ACCUMULATIONS,  of  income  of  absolute  interests      107-llla 

broken  into  for  maintenance 112  note 

in  case  of  charities 112  c,  296  c 

under  Pa.  St.  Apr.  18,  1853,  §  9 235  b 

ACQUIESCENCE  by  married  woman  no  reason  to  excuse 

disregard  of  clause  against  anticipation 271 

ADVOWSONS,  inalienable  trusts  of 112  & 

ALABAMA,  leaseholds  allowed  for  only  twenty  years    .     .         103 
equitable  interests  in  personalty  can  be  taken  on  ex- 
ecution          171  note 

cases  on   restraining   the   alienation   of   equitable  life 

interest 175,  177-178,  185-188  a,  213 

AMERICAN,  spendthrift  trusts  alleged  to  be  .     .     .     •      262,263 
ANNUITY  terminable  on  assignment  or  bankruptcy,  when 

payable  in  gross 83-89 

ARKANSAS,  case  on  restraining  the  alienation  of  equitable 

life  interest 175,  177-178,  194,  213 

exemption  laws 263  note 

ATTACHMENT,     equitable    interests    cannot    be     taken 

by 114  a,  note,  173,  227,  240  n 


JjOND  payable  on  bankruptcy,  invalid 92 

See  Covenant. 

BRACTON 16 

BRITTON 18 

BURfAL   LOT 29 

BUTLER,  Charles,  his  opinion  on  restraining  the  alienation 

of  equitable  life  interests 147 


302  INDEX. 

SECTION 

CALIFORNIA,  equitable  interests  can  be  taken  on  ex- 

,-.ui  ion 171  note 

statutes  in 296 

CHANCERY   follows  common  law  as  to  the  allowance  of 

restraints  on  alienation 1-44,  108,  256,  269 

how  Ear  creditors  have  a  remedy  in 170 

CHARGE  on  alienation 25,25a,  81 

CHATTEL  REAL.     ><<    Estate  fok  Years. 

CLUB,  membership  in  not  assignable 167,/,  279 

COMPROMISE  of  suit  against  trustee  may  be  consented  to 

by  married  woman  restrained  from  alienation      .     .     273  a 

CONDITIONAL    LIMITATION,  meaning  of    .     .     .       22  note 
and    condition,    of    like    effect    as    to    forfeiture    for 

alienation 12,  29  a,  79,  80. 

CONFLICT   OF    LAWS 271 

CONNECTICUT,  equitable  interests  can  be  taken  on  exe- 
cution         171  110te 

cases  on   restraining   the   alienation    of   equitable   life 

interests 175,  177-178,  195-199  6,  213 

CORPORATION,  reverter  on  dissolution  of 21  note 

See  Shareholder. 

COSTS,  when  payable  out  of  property  settled  with  clause 

against  anticipation 2716,273a 

COVENANT  not  to  alien 19  note,  77 

CREDITORS'    RIGHTS,   not  the  reason  for  disallowing 

restraints  on  alienation 258,  259 

CROWN.     See  King. 

DELAWARE,  case  on  restraining  the  alienation  of  equi- 
table life  interest    175,  177  a,  178,  240  ft,  240  y 

DETERMINABLE   FEE 22  note 

L  LECTION,  application  of  the  doctrine  of,  prevented  by 

clause  against  anticipation 272^ 

EQUITY.     See  Chancery. 

ESTATE    FOR   LIFE,  forfeiture  of,  on  alienation  .     .     .  78-100 

charge  on  alienation  of 81 

right  of  pre-emption  by  grantor 81 

restraint  on  alienation  of  legal  estates   .     .     .     134-139,296  6 

estates  of  married  women 140-142,  269-277  a 

equitable  estates, 

English  cases 143-108 


INDEX.  303 

SECTION 

ESTATE    FOR   LIFE,  Continued. 

American  cases 169-267/ 

Sandwich  Islands 268 

settled  on  settlor, 

forfeited  for  alienation, 

involuntary 91-95 

voluntary 96-100 

restraint  on  alienation  of      .     .     .     .  268  a-268  c,  270,  277  a 
ESTATE    FOR    YEARS,  condition  against  alienation  at- 
tached to  assignment  of,  bad 27,  102 

condition  not  to  alien,  good 101 

limitation  of,  always  construed  condition  ....      101  note 

restraint  on  alienation  of 27S,  278  a 

ESTATE   IN   FEE    SIMPLE.     See  Fee  Simple. 

ESTATE    TAIL.     See  Fee  Tail. 

EXECUTION,  equitable  interests  not  taken  on  .     .     .       171-174 

exceptions 171  note,  216  a,  217 

EXECUTORS,  conditions  against  alienation  of  leases  by  .     .    101 
EXEMPTION    LAWS,  as  a  reason  for  allowing  spendthrift 

trusts 6  a,  263 

_T  EDERAL    COURTS,  cases  on  restraining  the  alienation 

of  equitable  life  interests 250-267/ 

how  far  they  follow  State  law  in  equity      .     .     .       207  b,  note 
FEE    SIMPLE, 

forfeiture  for  alienation 11-74 # 

generally 13-30 

qualified, 

as  to  persons 31-44 

as  to  time, 

in  contingent  limitations 46 

in  vested  limitations 47-54 

as  to  manner 55-56  g 

on  intestacy ....  57-74  g 

■whether  determinable  by  special  limitation     ...       22  note 
abstaining  from  alienation  good  condition  precedent      22  a,  46 

charge  on  alienation 25,  25  a 

right  of  pre-emption  by  vendor 26 

restraint  on  alienation  of 105-131  k,  296  a 

FEE   TAIL 10,  25.  75-77,  132,  133 

FEME    COVERT.     See  Married  Women. 

FINES  at  common  law  and  by  statute 75 


304  IXDEX. 

SECTION 

FOREIGN    ATTACHMENT.     Set    Attachment. 

FORFEITURE  for  alienation 10-103 

FRAUD,  relief  against,  no  reason  for  setting  aside  clause 

against  anticipation L'71 


Garnishment.    s&  attachment. 

GE<  >RGIA,  cases  on  restraining  the  alienation  of  equitable 

life  interests 175,  177-178,  181,  213 

GIBSON,  Chief  Justice,  favored  spendthrift  trusts  .     ...   219 
<;  LAX  VILLE.  lib.  7,  c.  1 14 

xIAWAIT.      Se<    Sandwich  Islands. 

HUSBAND    AND   WIFE.     See  Married  Women. 

ILLINOIS,  alienation  of  equitable  fees 121  r 

cases  on  restraining  the  alienation  of  equitable  life  in- 
terests     .     .     .      175,   177  a,  178,  240  A,  240 1",  267  a,  267  c 

alienability  of  separate  estate '     275  d 

1X1)1  ANA.  cases  on  restraining  the  alienation  of  equitable 

life  interests 175,  177  a,  178,  240  A,  240  a 

statutes  in L>!i0 

INSURANCE,  assignment  of  policy  of,  restrainable     .     .     .29  c 
INTESTACY,  gifts  over  on 57-74 # 


J  UDGMENT,  creditor  must  get,  before  going  into  equity  170, 190/ 


JA.ANSAS,  exemption  laws 263  note 

statutes  in 09(5 

KENT,  Chancellor,  his  theory  of  gifts  over  on  intestacy     66,  69- 

71  a,  73,  74  a,  74  c 
KENTUCKY,  equitable  interests  in  land  can  be  taken  on 

execution 171  note 

cases  on   restraining  the   alienation   of  equitable  life 

interests 175,  177-178,  190  a-190Z,  213 

KING,    whether    he     may     grant     on    condition     not    to 

alienate 20,  2\  note 


INDEX.  305 

SECTION 

-LiEASE.     See  Estate  for  Yfars. 
LIFE   ESTATE.     See  Estate  fok  Life. 

LIMITATION.     See  Conditional  Limitation;   Special  Lim- 
itation. 


iM  AINE,  cases  on  restraining  the  alienation  of  equitable  life 

interests 175,  177  «,  178,  240  h,  2i0j 

MARRIED    WOMEN,  property  may  be  settled  on  husband 

till  his  death  or  bankruptcy 92 

separate  estate  freely  alienable 275  a-275  e 

contra  in  some  of  the  United  States     .     .     .      275/>-275</ 
restraints    on    anticipation  of   fees    and    absolute 

interests 125-131  k 

estates  tail 133 

life  interests 140-142,  269-277  a 

created  by  themselves 270,  277  a 

not  releasable  even  by  court 271 

but  now  by  statute 271  «,  271  b 

disregarded  when  interests  too  remote      .     .    272-272 g 
prevent  the  application  of  the  doctrine  of  election  272  h 

estates  for  years 278  a 

See  Power  of  Attorney. 

MARSHALLING  of  securities 274  a 

MARYLAND,  cases  on  restraining  the  alienation  of  equi- 
table life  interests  .     .     .  175,  177  a,  178,  240  h.  240  /.',  240  I 

alienability  of  separate  estate 275  //,  275  c 

MASSACHUSETTS,  terminable  annuities 85a 

cases  on  restraining  the  alienation  of  equitable  absolute 

interests 120,  122,  123,  T24Z-124j» 

cases   on    restraining   the    alienation    of   equitable    life 

interests 175,  177-178,  213,  236-240 /*.  257 

cases  on  anticipation  by  married  women     ....  205,  277  a 

MICHIGAN,  statutes  in 296 

MINNESOTA,  statutes  in 296 

MISSISSIPPI,    case  on  restraining  the  alienation  of  equi- 
table life  interest 175,  177  a,  178,  240  h,  240  m 

alienability  of  separate  estate 275  c 

MISSOURI,  cases  on  restraining  the  alienation  of  equitable 

life  interests 175,  177-178,  240 h,  240 j?-240s 

MORALITY,    views  of,  involved    in   question    of  allowing 

spendthrift  trusts 264,  265 

20 


306  INDEX. 

SECTIOK 

NEVADA,  exemption  laws 263  note 

NEW    HAMPSHIRE,  equitable  interests  can  betaken  ou 

execution      .     .     / 171  note 

NEW   JERSEY,  cases  on  restraining  the  alienation  of  equi- 
table life  interests      .     .     .     .  175,  177-178,  191-192  a,  213 
NEW    YORK,  cases  on  restraining  the  alienation  of  equita- 
ble life  interests, 

before  the  Revised  Statutes  .     175.  177-178,  180,  181,  213 

alter  the  Revised  Statutes 280-295 

alienability  of  separate  estate 275ft 

NORTH    CAROLINA,  cases  on  restraining  the  alienation 

of  equitable  life  interests      ....  175,177-178,182,213 
NORTH    DAKOTA,  statutes  in 29G 

OlIIO,  cases  on  restraining  the  alienation  of  equitable  life 

interests 175,177-178,190,213 

OKLAHOMA,  statutes  in 296 

ONTARIO,  Province  of,  restraints  on  alienation  of  fee  lim- 
ited in  time,  allowed  in 53,  54 

restraints  on  alienation  of  fee  qualified  as  to   manner, 

allowed  in 55 

PARTITION,  restraints  on 30 

PARTNER,  interest  of ,  may  be  made  non-assignable    .     .     .  29  d 

limited  to  copartners  on  his  bankruptcy 94 

PENNSYLVANIA,  terminable  annuities 85a 

restraints  on  alienation  of  equitable  fees    .     .  115,  124a-124£ 
cases   on    restraining   the   alienation    of   equitable   life 

interests       6.  175,  177-178.  213-2:).")  h,  2  lo  h,  265,  276-277  a 
equitable  interests  can  be  taken  on  execution      .     .  210  a,  217 

alienability  of  separate  estate 275  J 

effect  of  marriage  on  provision  against  anticipation     276-277  a 
PERPETUITIES,  Rule  against     8,  42,  43,  46,  49,  103,  112a-112<\ 

235  ft,  272-272  o,  296  c 
PERSONALTY.     See  Estate  for  Life;   Estate  for  Years; 
Fee  Simple. 

PEW .29 

POWER  OF   ATTORNEY,  by  married  woman  restrained 

from  anticipating 273  ft 

POWERS,  when  assets  for  creditors 4,219 

when  equivalent  to  absolute  interests 82,82  a 

exercise  by  married  woman  restrained  from  anticipating      126  a 


INDEX.  307 

SECTION 

PRE-EMPTION,  right  of 26,  81 

PUBLIC    POLICY,    the   true   reason    for   disallowing   re- 
straints on  alienation 3,  21,  107,  258-265 

Remoteness.    See  perpetuities. 

REPUGNANCY,  its  meaning 257 

RESTRAINTS    ON   ALIENATION 10,  104-278  a 

RHODE    ISLAND,  cases  on  restraining  the  alienation  of 

equitable  life  interests 175,  177-179  a,  213 

alienability  of  separate  estate 275  b,  275  c 

St.    LEONARDS,  Lord.     See  Sugden. 

SANDWICH    ISLANDS,  case  on  restraining  the  alienation 

of  equitable  life  interest 268 

SEPARABLE,  interests  of  cestuis  que  (rust  when 176 

SEPARATE   ESTATE.     See  Makkied  Women. 
SHAREHOLDER,  interest  of,  may  be  made  non-assignable  .  29  d 
SOUTH    CAROLINA,  case  on  restraining  the  alienation  of 

equitable  life  interest 175,  177-17S,  183,  213 

alienability  of  separate  estate 275  b 

SOUTH   DAKOTA,  statutes  in 296 

SPECIAL   LIMITATION 22  note 

STATUTES. 
English. 

Magna  Carta  (1217),  c.  39 15 

c.  43 4 

13  Edw.  I.  (Westm.  II.)  c.  1,  De  Donis  .     .    4,  6,  75,  143 

c.  18 4 

18  Edw.  I.  (Westm.  III.),  c.  1,  Quia  Emptores  4,  17, 18.  20 
4  Hen.  VII.  c.  24 77 

31  Hen.  VIII.  c.   1 30 

32  Hen.  VIII.  c.  1.     Wills 4 

c.  34 4 

c.  36 77 

34  &  35  Hen.  VIII.  c   5.     Wills 4 

13  Eliz.  c.  5.     Fraudulent  Conveyances 4 

27  Eliz.  c.  4  "  "  4 

12  Car.  II.  c.  24 4 

29  Car.  II.  c.  3,  §  10.     Frauds  .     .     .     . '  .     .     .     4,  174 

§§11,12 4 

3  W.  &  M.  c.  14 4 

54  Geo    III.  c.  161,  §  28 2 

33  &  34  Vict.  c.  93,  §  12 274  a 


308  INDEX. 

SECTION 

STATUTES,  Continued. 

14  &  45  Vict.  c.  41,  §  39 125  note,  271  a 

45  &  46  Vict.  e.  75 273  e,  note,  274  a 

56  &  57  Vict.  c.  63,  §  2 271  b 

United  States. 

Ltevised  Statutes,  §  4745 - 

Alabama,  Rev.  Code  (1876),  §  2190 103 

Arkansas,  Dig.  of  Sts.  (1874),  §§  2623,  2625  .  .  263  note 
California,  Civil  Code,  (1872),  §§  857,  859,  867  .  .  .  296 
Dakota,  Comp.  Laws  (1887),  §§  2798,  2800,  2808  .     .     .   296 

Illinois,  Rev.  Sts.  c.  22,  §  49 124r,  267  « 

Indiana,  Rev.  Sts.  (1881),  §  2972 296 

Kansas,  Const,  of  1859,  art.  15,  §  9 263  note 

Gen.  Sts.  (1889),  §  2998 263  note 

§  7162 296 

Kentucky,  Dec.  19, 1796,  §  13 190  6 

Dec.  17,  1821,  §  6      ....     190  tf,  190/,  190  # 
Gen.  Sts.  (1873),  c.  63,  art.  1,  §  21  .     .      171  note 

Civil  Code,  §474 190  g 

Michigan,  2  Coin]).  Laws  (1882),  §§  5373,  5575,  5581, 

6614,  6615 296 

Minnesota,  Rev.  sts.  (1866),  c.  43,  §  11.  13,  19      ...   296 

St.  1875,  c.  53 296 

Nevada,  Gen.  Sts.  (1885),  §  539 263  note 

New  Jersey,  Pub.  L.  1880,  p.  274;  Snppl.  to  Rev.  Sts. 

p.  292 192  a 

Rev.  Sts.  (1877),  p.  120,  §88 191 

New  York,  Rev.  Sts.  Part  2,  c.  1.  tit,  2,  art.  1,  §  32    .     .  56  g 

art.  2   .     .     .     .  281,  2S2,  283 

§  45 281 

§  55   .     .     .     281,  283 

§  :.7  .      199  6,  281,  287 

§  63  116,  281,  282,  286 

§  65  ...      281,  282 

c.  4,  tit.  4,  §§  1,  2      ....    286 

Part  3,  c.  1,  tit.  2,  art.  2,  §  38   281,  283,  287-289 

§  39  .     .281,  Iis7-2S9 

Code  of  Civil  Proc.  (1880),  §§  1*79,  2463     .    281 

Oklahoma,  Sts.  (1893),  §§  3762,  3761,  3771 296 

Pennsylvania,  Apr.  18,  1853,  §  9 235  6 

Tennessee,  Code,  §§  4282-4284      .     .     .     240  t,  240  v-240  x 

Texas,  Const,  of  1876,  art.  16,  §  51 263  note 

Wisconsin,  Kev.  Sts.  (1878),  §§  2081,  2083,  2089,  3029   .   296 
St.  of  1883,  c.  290 296 


INDEX.  309 

SECTION 

SUGDEN,    Sir  E.  B.,  opinion  on  restraining  the  alienation 

of  equitable  life  interests 148 

SUMMARY 279 


Tenant  for  life    see  estatk  for  life. 

TENANT    FOR   YEARS.     See  Estatk  for  Ykars. 
TENNESSEE,  cases  on  restraining  the  alienation  of  equi- 
table life  interests  ....  175,  177-178,  240  h,  240  t-240  x 

alienability  of  separate  estate 275  b,  275  c 

TERM   FOR   YEARS.     See  Estate  for  Years. 

TEXAS,  exemption  laws 263  note 

TRUSTEE   PROCESS.     See  Attachment. 

UNITED   STATES   COURTS.     See  Federal  Courts. 

V  ERMONT,  cases  on  restraining  the  alienation  of  equi- 
table life  interests  .     .     .       175.  177-178,  240  h,  240  n,  240  o 

VIRGINIA,  cases  on  restraining  the  alienation  of  equitable 

life  interests 175,  176-178,  240  h,  241-249  b 

alienability  of  separate  estates 275  d 

W  ISCONSIN,  cases  on  restraining  the  alienation  of  equi- 
table life  interests       .     .     .     175,  177-178,  194  a,  194  6,  213 
statutes  in 296 


UNIVERSITY  OF  CALIFORNIA   LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


MAR  1  6  1970 

FEB  3    ^T6 

MOV  l8  W& 


Form  L9-Series  4939 


LAW  LIBRARY 

UNIVERSITY  OF  CALIFORNIA 


SOUTHERN  REGIONAL  LIBRARY  FACIUTY 


AA    000  744  296    5 


'iMJfiM 


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